The Second Amendment right extends outside the home. In part one, we examined five lawful purposes protected by the Second Amendment as laid out by the supreme Court in the landmark case, D.C. v Heller. Here in part two we take a look at further evidence that demonstrates the right of the people to keep and bear arms extends outside of the home.

In part one, we saw that the Court ruled the D.C. handgun ban violated one of many lawful purposes of the Second Amendment, “such as self-defense within the home” (emphasis added). We see further the Court lists at least five lawful purposes – hunting, militia duty, repelling a foreign invader, suppressing insurrection, and resisting tyranny – that involve or require activity outside of the home. We can conclude from this that the right to keep and bear arms cannot be restricted to simply keeping a gun in the home.

Here in part two, we expand upon the core lawful purpose, which the Court specified in Helleris self-defense: “the inherent right of self-defense has been central to the Second Amendment right” (p.56). If one gets anything from the Heller decision, this must be it. The Court reiterated this finding in McDonald v Chicago in 2010, stating: “Two years ago, in District of Columbia v.Heller, this Court held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense” (Syllabus, p.1).

Self-defense can – and often does – involve a person outside of their home. Skeptics rely onreading into the Courts decision a limitation that the Court itself has not stated, postulating that “self-defense” might mean “self-defense… as long as you’re in your home; but nowhere else” because the Court struck down a law that prohibited guns in the home. But the Court itself did not specify this as the sole legitimate purpose, and this imagined limitation is artificially imposed in the minds of those that wish to limit others right to keep and bear arms protected by the Constitution.

The Court’s ruling in Heller sheds light on this. To recap, the Court thoroughly examines every word of the Second Amendment, defining it in historical context, legal precedent, and explaining how the right to keep and bear arms was viewed from English law to Colonial law, to the formation of the United States, post-ratification of the U.S. Constitution, through the post-Civil War era. It is clear from the historical documentation the people understood the right to keep and bear arms as part of the “the natural right of resistance and self-preservation” and “the right of having and using arms for self-preservation and defense” (p.20). “They understood the right to enable individuals to defend themselves. Americans understood the “right of self-preservation” as permitting a citizen to “repe[l] force by force” when “the intervention of society in his behalf, may be too late to prevent an injury” (p. 21). The Court notes that “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad” (p. 63). This means that understanding how the right to keep and bear arms at the time of ratification is critical to understanding what is protected in the Second Amendment today. There is no logical reason to conclude self-defense is limited solely inside one’s home, or that “self-preservation”, “repelling force with force”, or defending oneself suddenly stops because one is outside of the home.

Relevant to our understanding is the Court’s historical definition of what “keep” and “bear” meant. Keeping arms means to carry or have in one’s possession. “Keep arms” was simply a common way of referring to possessing arms, for militiamen and everyone else.” (p.9) The Court states: “the most natural reading of “keep Arms” in the Second Amendment is to “have weapons”” (p.8). “Bear arms” is synonymous with “carry arms”, “possess arms” and “have arms” (p. 14). “At the time of the founding, as now, to “bear” meant to “carry.” When used with “arms,” however, the term has a meaning that refers to carrying for a particular purpose — confrontation” (p.10). The Court says through examining historical source material, “In numerous instances, “bear arms” was unambiguously used to refer to the carrying of weapons outside of an organized militia” (p.11). In Heller, the Court concurs with its prior definition from Muscarello v. United States, “in the course of analyzing the meaning of “carries a firearm” that “[s]urely a most familiar meaning is, as the Constitution’s Second Amendment . . . indicate[s]: ‘wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person” (p.10).

We can see that within the core lawful purpose of the Second Amendment of self-defense the terminology means to keep arms on one’s person in case of confrontation and the need to defend oneself. To suggest the right to self-preservation or self-defense in the face of confrontation and potential bodily harm is limited solely to the home is absurd. The common person’s understanding of their protected right of self-preservation logically extends outside the home. This is also consistent with the five previously covered lawful protected purposes that involve or require activity outside the home.

By Matt MacBradaigh. Matt is a Christian, Husband, Father, Patriot, and Conservative from the Pacific Northwest. Matt writes about the Second Amendment, Gun Control, Gun Rights, and Gun Policy issues and is published on The Bell Towers, The Brenner Brief, PolicyMic. TavernKeepers, and Vocativ.

Follow Me on Twitter: https://twitter.com/2AFight  

Follow Me on Facebook:   https://www.facebook.com/2ndAmendmentFight
 

This article also appears on The Brenner Brief. (Original publication November 26, 2013).

The Second Amendment Right Extends Outside The Home, Pt 2

by Matt MacBradaigh | Nov 26, 2013 | 2nd Amendment Facts | 2 comments

The Second Amendment right extends outside the home. In part one, we examined five lawful purposes protected by the Second Amendment as laid out by the supreme Court in the landmark case, D.C. v Heller. Here in part two we take a look at further evidence that demonstrates the right of the people to keep and bear arms extends outside of the home.

In part one, we saw that the Court ruled the D.C. handgun ban violated one of many lawful purposes – plural – of the Second Amendment, “such as self-defense within the home” (emphasis added). We see further the Court lists at least five lawful purposes – hunting, militia duty, repelling a foreign invader, suppressing insurrection, and resisting tyranny – that involve or require activity outside of the home. We can conclude from this that the right to keep and bear arms cannot be restricted to simply keeping a gun in the home.

Here in part two, we expand upon the core lawful purpose, which the Court specified in Heller is self-defense: “the inherent right of self-defense has been central to the Second Amendment right” (p.56). If one gets anything from the Heller decision, this must be it. The Court reiterated this finding in McDonald v Chicago in 2010, stating: “Two years ago, in District of Columbia v. Heller, this Court held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense” (Syllabus, p.1).

Self-defense can – and often does – involve a person outside of their home. Skeptics rely on reading into the Courts decision a limitation that the Court itself has not stated, postulating that “self-defense” might mean ‘self-defense… as long as you’re in your home; but nowhere else’ because the Court struck down a law that prohibited guns in the home. But the Court itself did not specify guns for self-defense in the home only as the sole legitimate purpose, and this imagined limitation is artificially imposed in the minds of those that wish to limit others right to keep and bear arms protected by the Constitution.

The Court’s ruling in Heller sheds light on this. To recap, the Court thoroughly examines every word of the Second Amendment, defining it in historical context, legal precedent, and explaining how the right to keep and bear arms was viewed from English law to Colonial law, to the formation of the United States, post-ratification of the U.S. Constitution, through the post-Civil War era. It is clear from the historical documentation the people understood the right to keep and bear arms as part of the “the natural right of resistance and self-preservation” and “the right of having and using arms for self-preservation and defense” (p.20). “They understood the right to enable individuals to defend themselves. Americans understood the “right of self-preservation” as permitting a citizen to “repe[l] force by force” when “the intervention of society in his behalf, may be too late to prevent an injury” (p. 21). The Court notes that “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad” (p. 63). This means that understanding how the right to keep and bear arms at the time of ratification is critical to understanding what is protected in the Second Amendment today. There is no logical reason to conclude self-defense is limited solely inside one’s home, or that “self-preservation”, “repelling force with force”, or defending oneself suddenly stops because one is outside of the home.

Relevant to our understanding is the Court’s historical definition of what “keep” and “bear” meant. Keeping arms means to carry or have in one’s possession. “Keep arms” was simply a common way of referring to possessing arms, for militiamen and everyone else.” (p.9) The Court states: “the most natural reading of “keep Arms” in the Second Amendment is to “have weapons”” (p.8). “Bear arms” is synonymous with “carry arms”, “possess arms” and “have arms” (p. 14). “At the time of the founding, as now, to “bear” meant to “carry.” When used with “arms,” however, the term has a meaning that refers to carrying for a particular purpose — confrontation” (p.10). The Court says through examining historical source material, “In numerous instances, “bear arms” was unambiguously used to refer to the carrying of weapons outside of an organized militia” (p.11). In Heller, the Court concurs with its prior definition from Muscarello v. United States, “in the course of analyzing the meaning of “carries a firearm” that “[s]urely a most familiar meaning is, as the Constitution’s Second Amendment . . . indicate[s]: ‘wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person” (p.10).

We can see that within the core lawful purpose of the Second Amendment of self-defense the terminology means to keep arms on one’s person in case of confrontation and the need to defend oneself. To suggest the right to self-preservation or self-defense in the face of confrontation and potential bodily harm is limited solely to the home is absurd. The common person’s understanding of their protected right of self-preservation logically extends outside the home. This is also consistent with the five previously covered lawful protected purposes that involve or require activity outside the home.

This article was originally published on Brenner Brief. Original publish date Nov 26, 2013. Original author, Matt MacBradaigh.

Banning Detachable Magazines, Pt 2: Banning Would Violate The Second Amendment

Banning detachable magazines is all the rage among the anti-gun crowd. However, several recent Supreme Court cases clearly demonstrate that such a law would violate the Second Amendment. The Court has repeated ruled that weapons “in common use at the time” are protected for use by the Second Amendment. Firearms with detachable magazines have been “in common use” for over a century.

As noted in part one of this series, California’s state legislature passed a bill that would have banned firearms that accept detachable magazines. The bill failed to become law only because California Governor Brown vetoed it. Gun control advocates have recently put forth the idea of banning detachable magazines as a means of crime reduction or reducing mass murders. MIT Economics Professor Chris Knittel’s made this suggestion in an OpEd earlier this year. The idea has also been put forth by other anti-gun fanatics and unscrupulous politicians. In part one, we covered why the banning detachable magazines would not have any measurable impact on crime, homicides, or decrease in mass murders. Here in part two, we will cover why a ban on detachable magazines would be unconstitutional in violating the Second Amendment.

In several recent (and one not-so-recent) cases, the Supreme Court has ruled that the Second Amendment: protects the individual’s right to keep and bear arms (D.C. v Heller, 2008); that arms lawfully protected are those “in common use at the time” (U.S. v Miller, 1939; Heller, 2008; McDonald v Chicago, 2010); and the 14th Amendment extends Second Amendment protections to all states (McDonald, 2010). In the light of these Supreme Court rulings, it is clear any state or federal law banning detachable magazines would violate the Second Amendment’s protections to the people’s civil right to keep and bear arms.

In Heller, The Supreme Court defined what “arms” means in legal and historical context:

Before addressing the verbs “keep” and “bear,” we interpret their object: “Arms.” The 18th-century meaning is no different from the meaning today…defined “arms” as “weapons of offen[s]e, or armor of defen[s]e.”…Timothy Cunningham’s important 1771 legal dictionary defined “arms” as “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another” (p.7).

Thompson Tommy Gun, invented in 1919 and features detachable magazines

All firearms constitute arms according the Supreme Court: “The Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding” (p.8). While this doesn’t mean any arms whatsoever, in Heller the Court upheld previous legal restrictions from Miller on “dangerous and unusual” weapons. It should be noted that “dangerous and unusual” weapons are specifically defined and highly regulated under the 1934 National Firearms Act (NFA). They are also not “banned”, but are legal to own, provided the proper paperwork is filed with the ATF. “Dangerous and unusual” does not mean semi-automatic rifles and handguns, which are not regulated by the NFA.

The Court stated that what is protected are arms “in common use at the time” in Miller, Heller and McDonald. Rifles with magazines have been in existence for nearly two centuries. A magazine is an ammunition storage and feeding device in a firearm, and may be internal or detachable. All rifles, with the sole exception of single-shot rifles, have them. Rifles with magazines have been common since the 1800′s; the first bolt-action rifle was invented in 1824. Bolt-action and lever-action rifles with magazines became increasingly prevalent throughout the 1800′s: the Spencer repeating rifle utilized a tube magazine, while the M1885 Remington-Lee which featured an internal box magazine.

 Colt .45 handgun, featuring detachable magazines. Invented in 1911, still “in common use” today.

Detachable magazines have existed since the early 1900′s. The 1911 Colt .45 handgun, still “in common use” today, features detachable magazines. The Thompson “Tommy Gun” rifle, invented in 1919, also features detachable magazines. The Remington Model 8 and 81, first developed in 1906 with attached box magazines, was adapted in the 1920′s for detachable box magazines. Today, detachable magazines are common in everything from bolt-action rifles, like the Remington 700 to semi-automatic rifles like the AR-15, Mini-14, M-14, FAL, G3/H&K 91 type, AK47 variants and many others, and virtually all semi-automatic handguns. Because today’s detachable magazines are so common, many people think of magazines as separate objects, but they are integral to the function of rifles.

 

Schematic of Remington Model 81 magazine. Model 8′s & 81′s were invented in 1906; detachable magazines were available by the 1920s.

The Court has also said in Heller it is unconstitutional to ban an entire class of weapons popularly chosen by the American people (p.56-57). The Court also said that constitutionally protected rights are not subject to an interest-balancing approach, meaning the right can’t be limited just because gun violence is a problem (p.62-63). The Court states, “we are aware of the problem of [gun] violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution…But the enshrinement of constitutional rights necessarily takes certain policy choices off the table” (p.64). Similarly, semi-automatic rifles and handguns that utilize detachable magazines have been overwhelmingly chosen by the American people for lawful purposes including home and self-defense and hunting. The Court stated in Heller “as we have explained [from Miller], that the sorts of weapons protected were those “in common use at the time” (p.55). A law banning them would violate the Second Amendment.

By Matt MacBradaigh. Matt is a Christian, Husband, Father, Patriot, and Conservative from the Pacific Northwest. Matt writes about the Second Amendment, Gun Control, Gun Rights, and Gun Policy issues and is published on The Bell Towers, The Brenner Brief, PolicyMic. TavernKeepers, and Vocativ.

Follow Me on Twitter: https://twitter.com/2AFight  

Follow Me on Facebook:   https://www.facebook.com/2ndAmendmentFight
 

This article also appears on The Brenner Brief. (Original publication November 7, 2013).

Banning Detachable Magazines, Pt 2: Banning Would Violate The Second Amendment

by Matt MacBradaigh | Nov 7, 2013 | 2nd Amendment Facts | 1 comment

Banning detachable magazines is all the rage among the anti-gun crowd. However, several recent Supreme Court cases clearly demonstrate that such a law would violate the Second Amendment. The Court has repeated ruled that weapons “in common use at the time” are protected for use by the Second Amendment. Firearms with detachable magazines have been “in common use” for over a century.

As noted in part one of this series, California’s state legislature passed a bill that would have banned firearms that accept detachable magazines. The bill failed to become law only because California Governor Brown vetoed it. Gun control advocates have recently put forth the idea of banning detachable magazines as a means of crime reduction or reducing mass murders. MIT Economics Professor Chris Knittel’s made this suggestion in an OpEd earlier this year. The idea has also been put forth by other anti-gun fanatics and unscrupulous politicians. In part one, we covered why the banning detachable magazines would not have any measurable impact on crime, homicides, or decrease in mass murders. Here in part two, we will cover why a ban on detachable magazines would be unconstitutional in violating the Second Amendment.

In several recent (and one not-so-recent) cases, the Supreme Court has ruled that the Second Amendment: protects the individual’s right to keep and bear arms (D.C. v Heller, 2008); that arms lawfully protected are those “in common use at the time” (U.S. v Miller, 1939; Heller, 2008; McDonald v Chicago, 2010); and the 14th Amendment extends Second Amendment protections to all states (McDonald, 2010). In the light of these Supreme Court rulings, it is clear any state or federal law banning detachable magazines would violate the Second Amendment’s protections to the people’s civil right to keep and bear arms.

In Heller, The Supreme Court defined what “arms” means in legal and historical context:

Before addressing the verbs “keep” and “bear,” we interpret their object: “Arms.” The 18th-century meaning is no different from the meaning today…defined “arms” as “weapons of offen[s]e, or armor of defen[s]e.”…Timothy Cunningham’s important 1771 legal dictionary defined “arms” as “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another” (p.7).

Thompson Tommy Gun, invented in 1919 and features detachable magazines

All firearms constitute arms according the Supreme Court: “The Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding” (p.8). While this doesn’t mean any arms whatsoever, in Heller the Court upheld previous legal restrictions from Miller on “dangerous and unusual” weapons. It should be noted that “dangerous and unusual” weapons are specifically defined and highly regulated under the 1934 National Firearms Act (NFA). They are also not “banned”, but are legal to own, provided the proper paperwork is filed with the ATF. “Dangerous and unusual” does not mean semi-automatic rifles and handguns, which are not regulated by the NFA.

The Court stated that what is protected are arms “in common use at the time” in Miller, Heller and McDonald. Rifles with magazines have been in existence for nearly two centuries. A magazine is an ammunition storage and feeding device in a firearm, and may be internal or detachable. All rifles, with the sole exception of single-shot rifles, have them. Rifles with magazines have been common since the 1800′s; the first bolt-action rifle was invented in 1824. Bolt-action and lever-action rifles with magazines became increasingly prevalent throughout the 1800′s: the Spencer repeating rifle utilized a tube magazine, while the M1885 Remington-Lee which featured an internal box magazine.

Colt .45 handgun, featuring detachable magazines. Invented in 1911, still “in common use” today.

Detachable magazines have existed since the early 1900′s. The 1911 Colt .45 handgun, still “in common use” today, features detachable magazines. The Thompson “Tommy Gun” rifle, invented in 1919, also features detachable magazines. The Remington Model 8 and 81, first developed in 1906 with attached box magazines, was adapted in the 1920′s for detachable box magazines. Today, detachable magazines are common in everything from bolt-action rifles, like the Remington 700 to semi-automatic rifles like the AR-15, Mini-14, M-14, FAL, G3/H&K 91 type, AK47 variants and many others, and virtually all semi-automatic handguns. Because today’s detachable magazines are so common, many people think of magazines as separate objects, but they are integral to the function of rifles.

Schematic of Remington Model 81 magazine. Model 8′s & 81′s were invented in 1906; detachable magazines were available by the 1920s.

The Court has also said in Heller it is unconstitutional to ban an entire class of weapons popularly chosen by the American people (p.56-57). The Court also said that constitutionally protected rights are not subject to an interest-balancing approach, meaning the right can’t be limited just because gun violence is a problem (p.62-63). The Court states, “we are aware of the problem of [gun] violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution…But the enshrinement of constitutional rights necessarily takes certain policy choices off the table” (p.64). Similarly, semi-automatic rifles and handguns that utilize detachable magazines have been overwhelmingly chosen by the American people for lawful purposes including home and self-defense and hunting. The Court stated in Heller “as we have explained [from Miller], that the sorts of weapons protected were those “in common use at the time” (p.55). A law banning them would violate the Second Amendment.

This article was originally published on The Brenner Brief. Original publish date Nov. 7, 2013. Original author, Matt MacBradaigh.