What Are "Arms"?

The 2nd Amendment gives people the right to bear arms. In case you have been sleeping, there is a case before the U.S. Supreme Court with huge 2nd Amendment implications.

There is an ordinance in the city of Chicago that bans handguns. Someone sued the city. The case finally made it's way all the way to the top and was just argued before the Supremes a couple of days ago.

At this point though, the case isn't really about what the 2nd Amendment means or whether or not handguns are considered "arms". The issue is whether or not the Federal 2nd Amendment is applicable to or held against the states. Why?

A few years ago there was a handgun ban law passed in Washington D.C. Someone sued. That case eventually made it up to the Supreme Court and the ban was struck down as being in violation of the 2nd Amendment. Therefore, clearly the Supreme Court feels the Federal 2nd Amendment prohibits the banning of handguns.

Since Washington D.C. isn't a state, Federal law applies across the board. There is no state constitution, thus by default, the Federal 2nd Amendment applies to D.C. 

Now you can see what's at play. If the Federal 2nd Amendment applies to the State of Illinois, and the city of Chicago, the handgun ban goes bye-bye. It would be unconstitutional.

But what does the word "arms" mean? What is an arm for 2nd Amendment purposes? The generic definition of the word means weapons. At the time the original 2nd Amendment was written there wasn't as many types of firearms and other weapons that there is today. That's obvious.

I think it's safe to assume that the original use of the word "arms", covered about anything in existence. At some point, however, the meaning and/or interpretation of the word changed.

Certain types of firearms are banned lawfully in all states. I assume it's illegal to own a .50 caliber machine gun in all 50 states. I am sure owning hand grenades is illegal. Anti-tank mines too. Shoulder-launched, anti-aircraft missiles are a no no.

So basically all military-grade stuff is illegal to own. It would be hard to insure and register a tank in Chicago, and parking would be a nightmare.

A law school friend once told me he thought the 2nd Amendment was put into the bill of rights so that if the people ever wanted to overthrow the government, they could have the guns to do it. After all, isn't that basically how we became a nation? That's a very interesting thought.

But since the government has all of the good stuff, the chances of the Michigan Militia invading Washington D.C. and taking over are pretty slim. Perhaps that's why I can't own an F-16. Not that I could afford the fuel for it, but you get my point.

But where and how have state governments drawn the line to determine what "arms" means? How do you do it?

Gun lovers typically argue their need for guns is for protection and hunting. I am sure hunting was a major reason for the creation of the 2nd Amendment in the first place. Because in the late 1700's many people still had to kill animals to survive. Today, not so much.

So for most of today's hunters, killing is for sport. Yeah, some do eat what they kill, but don't need to in order to keep from starving. Hunting is called a sport, but so is bowling. And curling. I run for sport. Some sit in trees and shoot at deer. Different strokes for different folks.

I am not anti-hunting. Chicken fried elk steaks are very good. But I choose not to hunt. I was not raised around hunting. My dad was not an outdoors man. Hunting and fishing seem to be sports that are passed on from father to son, although I am sure not universally true.

Ok, so we need guns to hunt. What kind of guns? Well, in Illinois one cannot hunt with a rifle at anytime. Most Illinois deer hunters use bows. You can hunt with shot-guns in Illinois but most people can't get close enough to a deer to kill it with one, thus the bows. Shot-guns are mostly used to shoot at ducks, pheasants, and quails.

I doubt anyone hunts with handguns. Semi-automatic assault weapons also are not likely used for hunting.

Now for protection purposes, arguably anything under the sun could be used. Again, no military grade weaponry. I am willing to bet the weapon most purchased and kept for protection in America is the handgun. It's easy to understand why.

Handguns are small. They can be stored in very accessible locations. And you can teach your wife how to use it. If a burglar is heard breaking into your home at 2:00 am, having to go to the hallway closet to grab grandpa's old 12 gauge, find the shells, and load it would be a pain in the butt. However, grabbing a 9mm from the bedside table and loading a clip is easy as pie.

I believe in the right to protect one's home with a weapon. And handguns just make too much sense to outlaw them. But from a legal perspective, and in terms of the 2nd Amendment, I don't see a problem. Or maybe I do see a problem but fail to understand the analysis.

What is it that makes one weapon illegal and another one legal? If the original definition of "arms" included everything around at the time, what caused legislators to narrow the definition?

The military weapons are pretty obvious. Such weapons are not designed for storage in a home. I get that. And it makes sense. But some military weapons can be purchased legally. And here is where it gets confusing.

My cousin owns, and proudly displays in his bedroom, an M-4 assault rifle. It's basically a modernized M-16, with bi-pod legs that can be extended for use. It fires a 5.56 mm round or .223. It can engage targets easily at 300 meters (900 ft). When I write engage, I mean it's not hard to get a head shot at 300 meters with this weapon. And it could go through a 30 round magazine in a few seconds.

My cousin lives in Illinois. Thus, even if he wanted to, he cannot use that weapon to hunt within the state. And does anyone really hunt anywhere with an M-4? How many times do you need to shoot the deer to kill it? I was trained for one shot, one kill. But I digress.

So, what is the point of even owning such a weapon? Is he worried Iowa is going to invade Illinois? Or maybe it's those pesky Hoosiers?

While apparently owning this assault rifle is ok, a shotgun with a barrel shorter than 12 inches isn't ok. So much for making grandpa's old shot gun easier to get to in a hurry by shortening it a bit.

I am just really confused. Ban this one, but not that one. Hunt with this one, but not that one. Where does it end?

Time has shown that the word "arms" means a lot of things and is not consistent across the country. If the Supreme Court rules the Federal 2nd Amendment applies to the states, there could be some huge problems with current state gun laws.

It's a fact that the large majority of homicides caused by firearms are committed with handguns. Therefore, I understand why Chicago banned them. It must have seen like the thing to do.

Chicago has always had a homicide problem. Now, if most of those homicides are caused by handguns, then banning handguns should lower the homicide rate. Right? But banning handguns does not equal removing handguns from the street, thus the logic fails and so has the ordinance.

Chicago's homicide rate has decreased over the last several years, that's a fact. And there's no shortage of people wanting to claim credit. In 2001, there were 665 homicides in Chicago, but only 448 in 2004. That's a serious reduction. But has nothing to do with the handgun ban. There are pistols everywhere. Literally. I will tell a story to illustrate my point.

My investigator is a retired Chicago police homicide detective. One time he was investigating a case and had reason to believe a weapon had been thrown down either a sewer or storm drain (I can't remember). He had some type of giant magnet brought out and lowered under the street in an attempt to find the gun. Pretty clever.

When the magnet was brought up, there were 6 pistols stuck to it, but not the one he was looking for. Damn.

The Chicago handgun ban took effect in 1982. And 28 years later, it's still useless and has done nothing to reduce handguns on the street. So while Mayor Daley's interpretation of the word "arms" does not include handguns, common sense and, according to the Supreme Court, the Federal constitution say otherwise.


www.schantz-law.com

Twitter