The Right to Privately Possess and Carry Ordinary Firearms

The Right To Keep And Bear Arms? Is The Right To Privately Possess And Carry Ordinary Firearms.

As discussed above, Miller set forth a test for determining which ?arms? are protected by the Second Amendment: ?ordinary military equipment? that could ?contribute to the common defense,? Miller, 307 U.S. at 178, and is of a type in
common use that people may be expected to own. Miller, 307 U.S. at 179. That test cannot sensibly mean that the Second Amendment merely guarantees individuals sent to battle the right to carry a gun. Such an interpretation would

either (1) contemplate actual military service . . . other than that which is ordered or directed by the government; or (2) construe the constitutional provision as saying no more than that the citizen has a right to do that which the state orders him to do and thus neither grants the citizen any right nor in any way restricts the power of the state.

Emerson, 270 F.3d at 232 n.30 (emphasis original). One may also imagine instances where military personnel are ordered to refrain from having weapons; surely the Second Amendment would not guarantee a right to carry arms in derogation of contrary orders.

The questions thus naturally arise ? what are the meanings of ?keep? and ?bear?? ?Bearing? simply means carrying, without any necessary military connotation:

Surely a most familiar meaning [of carrying a firearm] is, as the Constitution's Second Amendment (?keep and bear Arms?) (emphasis added) and Black's Law Dictionary, at 214, indicate: "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.? Emerson, 270 F.3d at 232 (quoting Muscarello v. United States, 524 U.S. 125, 143 (1998) (Ginsburg, J., dissenting)).

Neither does the verb ?keep? necessarily carry a military connotation. ?Though the terms are related, the distinct right to ?keep? arms is individual and a helpful antecedent to bearing arms in a militia.? Nordyke, 319 F.3d at 1195 (Gould, J., specially concurring). ?Keep? as used in the Second Amendment can relate only to an individual right. Emerson, 270 F.3d at 232 (considering ?keep? separately from ?bear?). After all, if citizens cannot ?keep? guns, they cannot be ?expected to appear bearing arms supplied by themselves and of the kind in common use at the time? if called for duty. Miller, 307 U.S. at 179. If a gun is kept, but not borne upon the person, the gun is possessed in the sense that it is the subject of a person?s dominion and control. Ordinarily, an object would be ?kept? in the home or on possessed land.
There's not much for me to add, here.  We're establishing that the right protects the right to own and carry ordinary firearms. In that process the two terms need to be understood separately.  To "bear arms" is sometimes considered a term of art referring to military service, but evidence from the time indicates that that usage was not restrictive; it was just as possible to bear arms on a leisurely stroll through the countryside as it was to bear arms in a militia.  (That example is from one of Jefferson's writings).  And, of course, to "keep" arms never had a military connotation and means simply to possess or own them. 

It should be noted that "keeping" arms is mostly what this case is about.  The District's laws against bearing arms are equally draconian and in fact sufficient to make carrying a functional firearm between two rooms within your own home a violation.  This case, however, is focused on establishing the right to keep and bear arms within ones own home rather than outside of it.  The right to carry arms in public will have to be addressed in a later case, unless we get lucky and the decision includes it voluntarily.

Return to the table of contents.

This entry was published Sun Aug 13 15:14:53 CDT 2006 by TriggerFinger and last updated 2006-08-13 15:14:53.0. [Tweet]

comments powered by Disqus

Subscribe to Atom Feed

I am not a lawyer, and nothing on this site should be taken as legal advice.

This site is run on custom blog software and is being actively developed. Please be forgiving of errors.

This website is an Amazon affiliate and will receive financial compensation for products purchased from Amazon through links on this site.