III. What "arms" meant, circa 1787

III. What "arms" meant, circa 1787

First, a few modern definitions of "arms" present themselves. Merriam-Webster's Collegiate Dictionary defines the noun arm as "a means (as a weapon) of offense or defense; especially: firearm."18 Black's Law Dictionary defines the word arms as "anything that a man wears for his defense, or takes in his hands as a weapon."19

Federal law fails to define "arms" explicitly, but does identify some sub-groups of arms. For example, the National Firearms Act20 ("NFA") does not define arms in general terms, but does exhaustively list what items count as "firearms" under Federal law, including shotguns21, rifles22, machine guns23, silencers24, and the catch-all terms "any other weapon"25 or "destructive devices."26 Almost all the types of weapons listed in the NFA are easily man-portable, except for some rockets, missiles, bombs and mines that would presumably qualify as "destructive devices" but which weigh too much to be easily carried by one person.

The Omnibus Crime Control and Safe Streets Act27 ("OCCSSA") defines "firearm" as any weapon which is designed as or may be readily convertible to expel a projectile.28 The definition also includes the frame or receiver of such a weapon29, any firearm muffler or firearm silencer30, or any "destructive device."31 "Destructive devices" include bombs, missiles, rockets, grenades, mines and similar devices, whether they have explosive, incendiary, or poison-gas warheads.

In general, our modern documents offer little help in defining "arms," but our older documents have information that can enlighten us. Starting with the Declaration of Independence, we find that it specifically mentions arms only once. It recites a litany of King George III's violations of American rights, stating that he "has constrained our fellow-citizens, taken captive on the high seas, to bear arms against their country, to become the executioners of their friends and brethren, or to fall themselves by their hands."32 We gain no special insight into the definition of the term here, but it clearly contemplates military weapons.

Eleven years after Thomas Jefferson wrote the Declaration, future President James Madison kept exhaustive records of the debates and goings-on during the Constitutional Convention of 1787, where he was a delegate from Virginia. Although the delegates hashed out many of the details of creating and supplying the militia, only one quote in Madison's huge record bears closely on their understanding of the term "arms." During debates over the content of the militia clauses on August 23, 1787, delegate Elbridge Gerry of Massachusetts asked "Will any man say that liberty will be as safe in the hands of eighty or a hundred men, taken from the whole continent, as in the hands of two or three hundred, taken from a single state?"33 Jonathan Dayton of New Jersey argued against Gerry's ideas about militia uniformity. Dayton thought that in some states "there ought to be a greater proportion of cavalry than in others. In some places, rifles would be most proper; in others, muskets, &c."34 Looking at his reply, we see that Dayton evidently thought the militia could include mounted troops, not just foot soldiers with muskets. Nowhere in Madison's record did any delegate express surprise or disagreement with that idea.

The Federalist Papers and other writings of the Founding Fathers and their contemporaries mention "arms" in several contexts. Some clearly refer to man-portable weapons, but others suggest a broader possible definition of the word. For instance, Alexander Hamilton's essay in Federalist 29 emphasized the deterrent effect of a citizen militia against the U.S. Army:

". . . if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens."35

Referring to the impracticality of training militiamen all the way to professional soldier standards, Hamilton wrote "[l]ittle more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped."36 As other writings demonstrate below, a properly armed and equipped militia includes infantry, cavalry, and artillery units.

Madison, the eventual author of the Second Amendment, wrote in Federalist 46 of the "last successful resistance of this country against the British arms." Here the term "arms" refers generally to the British invasion and all its weaponry, including cavalry, artillery, and naval power. Expanding on Hamilton's theme of deterrence, Madison then argued for the establishment of a militia of "half a million of citizens with arms in their hands"37 as a deterrent against the standing army of any tyrannical federal government that might arise. Although read in a wooden and literal sense he meant man-portable small arms, his other writings and those of his contemporaries show that these men did not always think of arms in such a narrow way.

Moving outward from the Constitutional Convention, we look to records of the debates that the individual states held when deciding whether to ratify the Constitution. Many of these records include references to "arms." For example, when New York ratified the Constitution, it added a list of proposed Amendments which included the following text: ". . . That the people have a right to keep and bear arms; that a well-regulated militia, including the body of the people capable of bearing arms, is the proper, natural, and safe defence of a free state."38 Rhode Island's ratification document echoed that sentiment, saying ". . . That the people have a right to keep and bear arms; that a well-regulated militia, including the body of the people capable of bearing arms, is the proper, natural, and safe defence of a free state."39 The New York and Rhode Island proposals contemplate small arms at a minimum, and do not explicitly limit their definitions to small arms.

Vermont chimed in with a proposed Amendment exactly identical to the future text of the Second Amendment, arguing for an Amendment reading: "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."40 Virginia added a bit of detail on who would bear arms in its preferred Amendment, which read, ". . . That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defence of a free state."41

The Pennsylvania ratification debate mentioned the need for the militia to be effectively equipped and disciplined, and when referring to "arms" specifically addressed muskets,42 although not in an exclusive way that ruled out other weapons. In the ratification debates of North Carolina, Delegate William R. Davie gave a speech arguing for a strong military to compel other nations to respect international trade rules. He thought America ". . . should be empowered to compel foreign nations into commercial regulations that were either founded on the principles of justice or reciprocal advantages. . . . Is not our commerce equally unprotected abroad by arms and negotiation?"43 He clearly thought naval power fell within the definition of "arms."

The original thirteen states' constitutions expand the definition a bit beyond the U.S. Constitution, but not much. The original text of the Vermont Constitution mentions "arms" in the same context as the military and "standing armies" in general.44 The Pennsylvania Constitution of 1776, in its Declaration of Rights, contains identical text.45 A common sense reading of both documents suggests that the weapons in question could possibly include all military weaponry customarily in use at the time. Although a broad reading is possible, it is not certain.

Less-official writings of our Founders and their peers mentioned arms in several instances. George Washington's personal correspondence and official writings are full of references to "arms." For example, while he commanded the Continental Army, his General Orders repeatedly passed harsh sentences (typically 100 lashes or hanging) on deserters for "bearing arms against these United States." The severity of the punishments depended on whether the offender simply joined the British and merely "bore arms" or whether he violated the rules of war by committing heinous acts like burning civilian homes.46 Here, Washington made no mention of what type of unit each deserter served in. Common sense suggests he would have applied the penalty identically whether a man was found with the British infantry, artillery, cavalry, or Royal Navy.

In another example of his personal correspondence, Washington wrote: ". . . your first object should be a well regulated Militia Law; the People, put under good Officers, would behave in quite another Manner; and not only render real Service as Soldiers, but would protect, instead of distressing, the Inhabitants. What I would wish to have particularly insisted upon, in the New Law, should be, that every Man, capable of bearing Arms, should be obliged to turn out, and not buy off his Service by a trifling fine. We want Men, and not Money."47 Again, Washington referred to soldiers in general here, not just infantry.

Thomas Jefferson mentioned arms in his writings several times. In a letter to William Short, for example, he thought about the likelihood of revolution in France when he wrote ". . . [i]f, then, France has invaded Spain, an insurrection immediately takes place in Paris, the Royal family is sent to the Temple, then perhaps to the Guillotine; to the 2 or 300,000 men able to bear arms in Paris will flock all the young men of the nation."48 Later in the same letter, he wrote of "the army of the Pyrennes catch[ing] the same flame and return[ing] to Paris with their arms in their hands."49 Here he seemed to have small arms in mind. But in other writings he used a broader definition.

Referring to possible British attacks on Norfolk, Jefferson wrote, "Were they even disposed to make an attempt on Norfolk, it is believed to be sufficiently secured by the two frigates Cybele and Chesapeake, by the 12 gun-boats now there, & 4 more from Matthews county expected, -- by the works of Fort Nelson; to all of which we would wish a company of artillery, of the militia of the place, to be retained & trained, putting into their hands the guns used at Norfolk, and a company of Cavalry to be employed on the bay shore between Norfolk & Cape Henry..."50

Responding to Alexander Hamilton's opinions on the international incident involving a French warship equipped with cannons made in America51, Jefferson thought that "Great Britain ought not to complain: for, since the date of the order forbidding that any of the belligerent powers should equip themselves in our ports with our arms, these two cannon are all that have escaped the vigilance of our officers, on the part of their enemies."52 Later in the same document, Jefferson remarked that "it is equally true that more than ten times that number of Americans are at this moment on board English ships of war, who have been taken forcibly from our merchant vessels, at sea or in port wherever met with, & compelled to bear arms against the friends of their country."53

Jefferson seemed to think that "arms" included even full-blown naval guns, a category that included some of the most powerful weapons of his day. In fact, he understood the militia mentioned in the Constitution to include units of infantry, cavalry and artillery.54 Therefore, he must have imagined few limits (if any) on the kinds of arms needed to equip that militia of private citizens.

To wrap up our bundle of examples from personal correspondence, we find that another contemporary of the Founders, Joseph Story, thought that "[t]he right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic."55

Early records of the U.S. House of Representatives often parallel Jefferson's idea of a muscular militia of private citizens serving in infantry, cavalry, and artillery units.56 The House arranged to loan artillery to the Ohio militia in 1808.57

The early Senate tried to set up militia schools for cavalry and artillery in 182658, appropriated funds for a howitzer-equipped militia in 183259, gave the state militias field artillery, cavalry, and armed ships to defend the nation's borders in 1836.60 The Senate clearly assumed the existence of a powerful militia61 just like the House did.

The Continental Congress seemingly saw things the same way, providing for a militia that included several kinds of artillery and "every species of troops."62 It also recorded events at the end of the War of Independence, when "Letters were received from General Carleton and Admiral Digby, enclosing the British proclamation of the cessation of arms."63 The mention of a British Admiral implied that a nation's "arms" included naval power, which sounds reasonable when one recalls that America's early navy consisted in no small part of privateers.64

In fairness, that same body sometimes distinguished between "arms" and "cannon." It did so in 1776 when considering what kind of relations with France would best suit the colonies. The Continental Congress that year observed that it could pursue "[o]nly a commercial connection; that is, make a treaty to receive her ships into our ports; let her engage to receive our ships into her ports; furnish us with arms, cannon, saltpeter, powder, duck, steel."65 The key point to remember, though, is that sometimes cannons were indeed seen as militia-ready arms.

We now know that our nation's oldest writings seem to show that the "arms" which citizens could keep and bear included some of the most advanced and destructive weapons known at the time. Without some counterbalance, the scary modern scenario of the privately-owned suitcase nuke wiping out a city center seems more threatening than perhaps it should. But fortunately for us, some old court cases tackle the definition of "arms" too, and in a very detailed and helpful way. Three cases decided in the 1840s deserve a look.

State v. Buzzard,66 an 1842 Arkansas case, includes a straightforward claim that

. . . the term "arms," in its most comprehensive signification, probably includes every description of weapon or thing which may be used offensively or defensively, and in the most restricted sense, includes guns or firearms of every description, as well as powder, lead and flints, and such other things as are necessarily used in loading and discharging them, so as to render them effective as instruments of offense or defense, and without which their efficiency for these purposes would be greatly diminished, if not destroyed.67 [emphasis added]

Reining in this expansive definition, though, Chief Justice Ringo thought it possible to legitimately restrict the right to keep and bear arms. He pointed out that the individual rights protected by the first ten Amendments could not possibly be absolute (and therefore free from all regulation) because otherwise great disorder and conflict would tear society apart.68 He illustrated his point when he mentioned certain justified limits on freedom of speech and of the press that were "necessary to protect the character and secure the rights of others, as well as to preserve good order and the public peace."69 Justice Dickinson agreed when he wrote, "[t]he motive, then, for granting this power to keep and bear arms could not be extended to an unlimited, uncontrolled right to bear any kind of arms or weapons, upon any and every occasion; still less the terms, for they are restrictive in their language."70 Here we see an early example of a court applying reasonable and constitutionally sound upper limits on weapon ownership, while still preserving the plain meaning of the Second Amendment's protected individual right.

The Alabama Supreme Court two years earlier had recognized in State v. Reid71 a similar reason to place legislative limits on the carrying of concealed weapons, explaining that a law "intended merely to promote personal security, and to put down lawless aggression and violence . . . does not come in collision with the constitution."72

Nunn v. Georgia,73 decided four years after Buzzard, went furthest of these three cases in liberally defining "arms." Judge Lumkin's majority opinion saw no limit on what weapons qualified for Second Amendment protection from both federal and state74 infringement:

"The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of the free State."75 [emphasis added]

However, Judge Lumkin also thought it possible to legitimately restrict the right to keep and bear arms. His opinion explained that although the right was a fundamental one, the state legislature could forbid the carrying of concealed weapons so long as the natural right to keep and bear arms remained intact.76

So where does all this historical research bring us? It seems fairly clear that the Founders and their informed contemporaries understood the term "arms" to be synonymous with what we call "weapons." They did not use that overarching meaning at all times, sometimes referring to particular types of weapons like small arms as simply "arms." But the Founders' generation were certainly willing to apply the term to more powerful and traditionally "military-only" weapons. This is evident in the writings that prove they thought it very important to have an armed populace capable of resisting foreign invasion and domestic tyranny alike.

Since we are trying to be faithful textualists, now we need to bring that understanding forward to our time and see what shakes out.