The Second Amendment provides: “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.” In interpreting this text, we are guided by the principle that “[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.” United States v. Sprague, 282 U. S. 716, 731 (1931); see also Gibbons v. Ogden, 9 Wheat. 1, 188 (1824). Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation.

--Heller v. D. C., Majority Opinion, authored by Judge Activist Antonin Scalia

At the time the Second Amendment was made, there was well established common law governing the interpretation of legal instruments. There is an abundance of evidence that the lawmakers assumed the well established common law rules of construction would be used to ascertain the meaning of the words of the Constitution and Bill of Rights. It was well established common law in the late 1780's, that,

THE fairest and most rational method to interpret the will of the legislator, is by exploring his intentions at the time when the law was made, by signs the most natural and probable. And these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law. Let us take a short view of them all.

1. Words are generally to be understood in their usual and most known signification; not fo much regarding the propriety of grammar, as their general and popular use. Thus the law mentioned by Puffendorfl, which forbade a layman to lay hands on a priest, was adjudged to extend to him, who had hurt a priest with a weapon. Again; terms of art, or technical terms, must be taken according to the acceptation of the learned in each art, trade, and science. So in the act of settlement, where the crown of England is limited “to the princess Sophia, and the heirs “of her body, being protestants,” it becomes necessary to call in the assistance of lawyers, to ascertain the precise idea of the words “heirs of her body;” which in a legal sense comprise only certain of her lineal descendants. Lastly, where words are clearly repugnant in two laws, the later law takes place of the elder: leges pofteriores priores contraries abrogant is a maxim of univerfal law, as ell as of our own conftitutions. And accordingly it was laid down by a law of the twelve tables at Rome, quod populus poftremum juffit, id jus ratum efto.

Inst. 1. 2. 6.
L. of N. and N. 5. 12. 3.

2. IF words happen to be still dubious, we may establish their meaning from the context; with which it may be of singular use to compare a word, or a sentence, whenever they are ambiguous, equivocal, or intricate. Thus the proeme, or preamble, is often called in to help the construction of an act of parliament. Of the same nature and use is the comparison of a law with other laws, that are made by the fame legislator, that have some affinity with the subject, or that expressly relate to the same point. Thus, when the law of England declares murder to be felony without benefit of clergy, we must retort to the fame law of England to learn what the benefit of clergy is: and, when the common law censures simoniacal contracts, it affords great light to the subject to consider what the canon law has adjudged to be simony.

3. AS to the subject matter, words are always to be understood as having a regard thereto; for that is always supposed to be in the eye of the legislator, and all his expressions directed to that end. Thus, when a law of our Edward III. forbids all ecclesiastical persons to purchase provisions at Rome, it might seem to prohibit the buying of grain and other victual; but when we confider that the statute was made to repress the usurpations of the papal fee, and that the nominations to vacant benefices by the pope were called provisions, we shall see that the restraint is intended to be laid upon such provisions only.

4. AS to the effects and consequence, the rule is, where words bear either none, or a very absurd signification, if literally understood, we must a little deviate from the received sense of them. Therefore the Bolognian law, mentioned by Puffendorf m, which enacted “that whoever drew blood in the streets should be punished with the utmost severity,” was held after long debate not to extend to the surgeon, who opened the vein of a person that fell down in the street with a fit.

l. 5. c. 12. §. 8.

5. BUT, lastly, the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it; or the cause which moved the legislator to enact it. For when this reason ceases, the laws itself ought likewise to cease with it. An instance of this is given in a cafe put by Cicero,or whoever was the author of the rhetorical treatise inscribed to Herennius. There was a law, that those who in a storm forsook the ship should forfeit all property therein; and the ship and lading should belong entirely to those who staid in it. In a dangerous tempest all the mariners forsook the ship, except only one sick passenger, who by reason of his disease was unable to get out and escape. By chance the ship came safe to port. Now here all the learned agree, that the sick man is not within the reason of the law; for the reason of making it was, to give encouragement to such as should venture their lives to save the vessel: but this is a merit, which he could never pretend to, who neither staid in the ship upon that account, nor contributed any thing to it's preservation.

--Sir William Blackstone's Commentaries on the Law of England.

If the Supreme Court wants to ascertain the will of the lawmakers at the time they made the Second Amendment, the Court should follow the rules of construction the lawmakers probably intended for the Court to use.

PS: The "normal and ordinary" meaning of the word "arms" in the late 1780's was, "human upper limbs; especially the part between the shoulder and the wrist."

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I find it appalling that Justice Antonin Scala, in his dissenting opinion in McCreary County v. ACLU, constructed his model of "the relationship between church and state" in America without even considering the actual text of the Constitution. How do incompetents like him get on the U. S. Supreme Court?

you lost, might as well deal with it.

Ain't nothing to deal with, daddy. I, personally, don't really care much about the gun issue.

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I find it appalling that Justice Antonin Scala, in his dissenting opinion in McCreary County v. ACLU, constructed his model of "the relationship between church and state" in America without even considering the actual text of the Constitution. How do incompetents like him get on the U. S. Supreme Court?

Let's take a close look at Scalia's pathetic attempt to ascertain the meaning of the word "arms" in the Second Amendment.

Quote:

....we interpret their object: “Arms.” The 18th-century meaning is no different from the meaning today.

Scalia didn't say he was going to go by the 18th Century meanings of words. He said he was going to go by the normal and ordinary use of words by ordinary American citizens.

Quote:

The 1773 edition of Samuel Johnson’s dictionary defined “arms” as “weapons of offence, or armour of defence.” 1 Dictionary of the English Language 107 (4th ed.) (hereinafter Johnson).

That was only one of the eleven meanings Johnson's Dictionary gave for the word "arms." How did Scalia ascertain that the most normal and ordinary use of the word "arms" by ordinary American citizens of the founding generation was the one that defined the word as “[b]weapons of offence, or armour of defence?"

According to Samuel Johnson, that particular meaning was deduced from the way Alexander Pope used the word in his translation of Homer's Iliad. Alexander Pope hardly qualifies as an ordinary American citizen of the founding generation.

Quote:

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.” 1 A New and Complete Law Dictionary (1771);

That was just one of the two meanings of the word, according to Cunningham. Also, it was given that meaning by an English Court in the 1600's. Scalia never said the was going to use "subject matter" to ascertain the meaning of the Second Amendment.

Quote:

see also N. Webster, American Dictionary of the English Language (1828) (reprinted 1989) (hereinafter Webster) (similar).

Webster gave four other definitions of the word. Why didn't Scalia use one of those?

Quote:

The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity. For instance, Cunningham’s legal dictionary gave as an example of usage: “Servants and labourers shall use bows and arrows on Sundays, &c. and not bear other arms.”

Justice Scalia said he was going to go by the normal and ordinary use of words by ordinary American citizens. Timothy Cunningham wasn't even an American.

Quote:

See also, e.g., An Act for the trial of Negroes, 1797 Del. Laws ch. XLIII, §6, p. 104, in 1 First Laws of the State of Delaware 102, 104 (J. Cushing ed. 1981 (pt. 1));

How does the use of words by the Delaware legislature to make a law qualify as normal and ordinary use by ordinary Americans?

Quote:

see generally State v. Duke, 42 Tex. 455, 458 (1874) (citing decisions of state courts construing “arms”).

How does the use of words by state courts in judicial opinions qualify as normal and ordinary use by ordinary Americans?

Quote:

Although one founding-era thesaurus limited “arms” (as opposed to “weapons”) to “instruments of offence generally made use of in war,” even that source stated that all firearms constituted “arms.” 1 J. Trusler, The Distinction Between Words Esteemed Synonymous in the English Language 37 (1794) (emphasis added).

John Trusler wasn't even an American and none of the examples he used were taken from the normal use of words by ordinary Americans.

Quote:

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment.

I'd like to see some evidence that ordinary American citizens of the founding generation normally and ordinarily used the word "arms" to refer to things not even in existent at the time.

Quote:

We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001),

I better not find a case where you didn't follow that principle.

Quote:

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.

That's nice. However, you said you were interpreting the word "arms." Does the word mean "weapons of offence, or armour of defence", "any thing that a man wears for his defence" or some other meaning?

How is a trial judge, using that crap, supposed to determine whether an instrument, such as a lance with its point covered with a deadly strain of flesh eating bacteria, is, or isn't, "bearable arms?"

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I find it appalling that Justice Antonin Scala, in his dissenting opinion in McCreary County v. ACLU, constructed his model of "the relationship between church and state" in America without even considering the actual text of the Constitution. How do incompetents like him get on the U. S. Supreme Court?

Without seeing the order in which the definitions are given, one cannot possibly say which was the most popular one. If you have the order, along with the eleven other meanings, by all means, post it, though it truly matters not since most Americans agree with the USSC decision anyway.

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"Life should NOT be a journey to the grave with the intention of arriving safely in an attractive and well preserved body, but rather to skid in sideways, chardonnay in one hand, chocolate in the other, body
thoroughly used up, totally worn out, and screaming 'WOO HOO, what a ride!'"

Tell me you're just making a bad joke. I mean, you cannot possibly be that stupid, can you?

In the context in which the word was used, the word "arms" indicates "weapons". That has NEVER been questioned.

Yes, you have to take word meanings in context. That is how the English language works.

Upon further reflection, I have decided you are simply too stupid for rational discourse. This earns you a place on my ignore list, right next to crisis (and for much the same reasons).

Do note that my use of the word "stupid" is not intended as an insult but rather as an observation. You have been given the tools and information to correct your ignorance, yet insist upon ignoring them.

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In case you were wondering, yes, there really ARE more idiots these days....technology has made natural selection obsolete.

Here's the thing with this 2nd Amendment, and this Heller decision, it's still a little vague and open to interpretation, so it will probably go back to a future Supreme Court for further clarification.

You could argue that in the original meaning, it referred to single shot, black powder, muzzle loaded firearms, swords, lances, maces and daggers.
And the decision clearly does not effect restrictions on automatic weapons.
Because what's not clearly defined is where the line is drawn, between a flint lock musket, and an UZI.
What characteristics make it a protected class of bearable arms, as opposed to a class of bearable arms that are not protected?

What of future technology, what happens when directed energy devices become small enough to carry and powerful enough to be lethal, were the founding fathers securing the right to bear "Death ray" devices for all time?

What if it's determined that at some point in the future, that a well regulated militia is no longer necessary, does that remove the entire article

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“The thought of his being president sends a cold chill down my spine.”

Senator Thad Cochran, Mississippi (R)
on McCain

“I decided I didn’t want this guy anywhere near a trigger.”
Senator Pete Domenici, New Mexico (R)
on McCain

“My anger did not help my campaign ... People don’t like angry candidates very much.”

McCain on McCain

The amendment says "arms" not "guns". Additionally, it says "shall not be infringed" not "can be restricted". It is designed to restrict GOVERNMENT, not the people.

The only way to legitimately grant government any authority to restrict the ownership of any form of weapon is to amend the Constitution.

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In case you were wondering, yes, there really ARE more idiots these days....technology has made natural selection obsolete.

Be careful what you wish for.

Have a ruling which says that convicted felons and mental patients must be sold Thompsons and you will soon see that Amendment; and the reaction of the so far silent majority on this issue may not be at all kind toward those they will then regard as either manifestly insane, blatantly criminal or both

Be careful what you wish for.

Have a ruling which says that convicted felons and mental patients must be sold Thompsons and you will soon see that Amendment; and the reaction of the so far silent majority on this issue may not be at all kind toward those they will then regard as either manifestly insane, blatantly criminal or both

Also, by this reasoning, what's to stop Bill Gates from making an Atom Bomb?

I doubt it.

The pro-gun-control crowd doesn't actually want to work to change the law the right way. If they did, they would have already.

John, convicted felons already can and DO get any form of weapon they want - just not legally. There is not a single law you could possibly create which would change that.

The 2nd Amendment will not be repealed. Even if every anti-gun idiot in the nation actually showed up to vote, you still wouldn't manage more than 5-7 states in support of the change.

If I am incorrect, that would be even worse, as I can assure you, MANY gun owners would simply decide they'd had enough and you'd see another revolution.

It would make FAR more sense, be much less expensive, and not require an amendment to simply reduce the number of felonies on the books and then punish the criminals severely - do not let them out of jail until their sentence is complete.

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In case you were wondering, yes, there really ARE more idiots these days....technology has made natural selection obsolete.

Well, leaving aside the fact that it would be FAR less expensive for him to purchase one from Russia than to make one of his own, the only thing stopping him would be the time and cost involved...well that and obtaining the fissionable material.

Building the bomb itself really isn't that hard. Plans are available all over the 'Net and MIT used to get at least one physics student a year who did that until the school implemented policies disallowing that particular project.

The specific tool someone wants is not the problem. It is the person who has the tool, and how he chooses to use it that is the problem.

Nobody ever said freedom came without responsibility or consequence - or risk. If you believe it does, you're sadly mistaken.

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In case you were wondering, yes, there really ARE more idiots these days....technology has made natural selection obsolete.

Scalia is a judicial activist. His only methodology is to abuse the rules of construction to produce an outcome that squares with his personal opinions.

He will use he most usual and most know signification rule, then turn around and use a completely different rule to interpret the next word in the same section of the Constitution. He's an activist who uses whatever method, principle or rule produces the outcome he wants.

Sometimes that method might be the "usual and most known" signification rule. Sometimes it is the rule regarding "context." Sometimes he he uses "longstanding doctrine."

He's an activist. His methodology is not designed to objectively ascertain the will of the lawmakers. The object of his methodology is to produce the outcome he personally favors.

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I find it appalling that Justice Antonin Scala, in his dissenting opinion in McCreary County v. ACLU, constructed his model of "the relationship between church and state" in America without even considering the actual text of the Constitution. How do incompetents like him get on the U. S. Supreme Court?

To suggest that the general public understood the "arms" in keep or bear arms having nothing to do with classes of weaponry generally referred to as "arms", but rather as "'human upper limbs; especially the part between the shoulder and the wrist." is one of the most willfully ignorant or flat out dishonest things I have ever seen posted in this forum.

But then this is the type of sheer stupidity that has been demonstrated over and over again by some on the forum.

What is next? That "bear" was understood to be an animal, and that the 2nd Amendment is talking about keeping "bear arms" and not even human "arms". Sheer sophistry and foolishness.

So ignorant of basic english, basic law, and basic legal and cultural history to realize that law rules for statutory construction he keeps quoting (but clearly too obtuse to UNDERSTAND) are the very rules which Scalia consistently applies to his textual interpretation.

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"It's a good feeling to shoot a bad guy. Something you democrats would never understand. Americans are homesteaders, we want a safe home, keep the money we make, and shoot bad guys!"

----Denny Crane

I guess we need permission to have arms according to him?