In a recent interview with Chris Wallace on Fox News, Justice Antonin Scalia, one of the Court’s conservative justices (and one known for his support of citizen gun rights), said:
Wallace: You wrote in 2008, the opinion in District of Columbia v. Heller, the majority opinion that said the Second Amendment means what it says, people have a right to bear arms. Question: how far does that constitutional right go? Can a legislature ban semiautomatic weapons or can it ban magazines that carry 100 rounds without violating an individual’s constitutional right to bear arms?
SCALIA: What the opinion Heller said is that it will have to be decided in future cases. What limitations upon the right to bear arms are permissible. Some undoubtedly are, because there were some that were acknowledged at the time. For example, there was a tort called affrighting, which if you carried around a really horrible weapon just to scare people, like a head ax or something, that was I believe a misdemeanor.
So yes, there are some limitations that can be imposed. What they are will depend on what the society understood was reasonable limitation. There were certainly location limitations where —
WALLACE: But what about these technological limitations? Obviously, we’re not talking about a handgun or a musket. We’re talking about a weapon that can fire a hundred shots in a minute,
SCALIA: We’ll see. I mean, obviously, the amendment does not apply to arms that cannot be hand-carried. It’s to keep and bear. So, it doesn’t apply to cannons. But I suppose there are handheld rocket launchers that can bring down airplanes that will have to be — it will have to be decided.
WALLACE: So, how do you decide if you’re a textualist?
SCALIA: Very carefully. My starting point and ending point probably will be what limitations are within the understood limitations that the society had at the time. They had some limitation on the nature of arms that could be born. So, we’ll see what those limitations are as applied to modern weapons.
It might be worth mentioning here the two related but slightly different judicial doctrines of originalism and textualism. The first looks to the original meaning of the Constitution at the time of its adoption and rejects the idea of a “living” document that is to be interpreted in accordance with modern ideas. Changes are to be done by amendment, not interpretation. Textualism looks to the actual import of the words in their original context rather than to today’s meanings. Here Scalia uses the term “bear arms” and I think gets it wrong by interpreting “bear” as “carry.” The term “to bear arms” is a term of art that goes back all the way to Greco-Roman times. Professor Garry Wills sorts it out thusly:
“… “Bear Arms” refers to military service, which is why the plural is used (based on Greek ‘hopla pherein’ and Latin ‘arma ferre’) – one does not bear arm, or bear an arm. The word means, etymologically, ‘equipment’ (from the root ar-* in verbs like ‘ararisko’, to fit out). It refers to the ‘equipage’ of war. Thus ‘bear arms’ can be used of naval as well as artillery warfare, since the “profession of arms” refers to all military callings.”
Thus a clerk at the Pentagon, a submariner, or an M-1 tank crewman all “bear” arms altho the latter two can by no means pick them up. It simply makes no sense either in the literal or historical sense to say that it is somehow limited to hand weapons that can be readily carried.
So much for the textual sense of the term. What about the historical context? Was Justice Scalia correct in implying that the right to bear arms never applied to large crew-served weapons like cannon?
No, he’s wrong there too. In fact there is a long tradition of militia “bearing” cannon as well as muskets, cavalry lances, and the like. In fact two of the oldest established military companies, both originally militia, were artillery companies – the Honourable Artillery Company of London was incorporated by Royal Charter in 1537 and long predates the organization of the British Army. A similar organization – the Ancient and Honorable Artillery Company of Massachusetts – was granted a charter in Boston in 1638. It also still exists and is the oldest chartered military unit in North America. Alexander Hamilton began his military career with a New York militia artillery unit dubbed “Hearts of Oak.”
Colonial authorities of all nations in America and later those of the United States recognized the need for artillery militia units as well as those of cavalry and infantry. As mentioned above, some go back nearly as far as the European settlement of the continent.
Another example is the famous Washington Artillery of New Orleans, which was descended directly from the militia artillery companies of the French and Spanish colonial governments. Two companies served at the battle of New Orleans as part of the Battalion of New Orleans Volunteer Militia and by the end of the decade were firmly established in the local military and social scene. Five companies served the Confederacy in the Civil War.
Other examples include the Newport Artillery Company (Newport, RI), organized in 1741; the Charleston Artillery Company (Charleston, SC), established in 1756; and the Greensborough Light Artillery Guards (Greensboro, AL), organized in 1823. There were many more – artillery militia companies were fairly common in the years leading up to the Civil War and were organized all over the country. No one seemed to have a problem with the civilians owning cannon – the real obstacle was cost. Equipping an artillery company was even more expensive than outfitting one of cavalry – the traditional arm of the rich and aristocratic – so often the companies petitioned the state legislature for money to buy their guns. This was somewhat different than other militias who were usually expected to provide their own arms, although some (the records are murky) apparently did. Many of these companies were incorporated directly into the armies of 1861.
Artillery companies served in most American conflicts up to including the Civil War, after which the militia system declined and was eventually supplanted in the latter years of the 19th Century by the National Guard.
Looked at both from the historical and contextual standpoint, we can safely say that yes, the citizen militia did have cannon and that “bearing arms” was not a physical limitation. Which, I suppose, puts us squarely back to the question the Supreme Court addressed in District of Columbia vs. Heller – is the Second Amendment an individual or a collective right? The majority, in an opinion written by Justice Scalia, decided that it was an individual right and that outright bans on possession of guns by civilians were unconstitutional, but added that bans on weapons like machineguns were okay because they were not part of a citizen’s armament when the Second Amendment was written. But what about cannon, which definitely were?
I did a post on the Alabama militia and their role in the run-up to the Civil War a while back.
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