Don’t let the government cheat! Plain text first. Know what it means. K.I.S.S. it. Is it an arm? Are they a member of The People? Do they want to keep or bear?

(1550 words)

While Justice Thomas said that the inferior courts had gone one step too far in their two-step analysis of Second Amendment challenges, the Heller Court did lay out a two-step analysis.

Heller said that the first step was to determine if the proposed conduct implicated the plain text of the Second Amendment as understood at the founding. The second step was for the state to provide historical analogues of the modern infringement from the time of the founding.

The inferior courts cheated. They took the Heller methodology and just assumed that the modern infringement was unconstitutional without deciding.

This allowed them to say, “We will assume an ‘assault weapon’ ban is assumed to be unconstitutional. Moving on, we look at how bad your rape is, if it is bad bad, then we’ll use strict scrutiny. If it is only a bad rape, then we’ll use intermediate scrutiny. The government then has the burden to show that they have a good reason to be raping you.”

Justice Thomas slapped the inferior courts around. He explained that the inferior courts, when deciding a Second Amendment challenge, must first determine if the proposed conduct touches fingers with the plain text of the Second Amendment. If it does, then the inferior court moves to the second and final step, can the state prove a history and tradition of regulations from the founding which are analogous to the modern infringement.

The Heller Court analyzed every word and phrase of the Second Amendment. They have laid out the meaning of the plain text of the Second Amendment. There is no “It depends on what your definition of is, is”. It is defined.

The plain text of the Second Amendment is implicated if a member of The People wants to keep or bear arms.

Is means IS!

That means the first question is if the plaintiff (good guy) is a member of The People.

What is more, in all six other provisions of the Constitution that mention “the people,” the term unambiguously refers to all members of the political community, not an unspecified subsetDistrict of Columbia v. Heller, 467 U.S. 837 (2008)

The then cited themselves:

That text, by contrast with the Fifth and Sixth Amendments, extends its reach only to “the people.” Contrary to the suggestion of amici curiae that the Framers used this phrase “simply to avoid [an] awkward rhetorical redundancy,” Brief for American Civil Liberties Union et al. as Amici Curiae 12, n. 4, “the people” seems to have been a term of art employed in select parts of the Constitution. The Preamble declares that the Constitution is ordained and established by “the people of the United States.” The Second Amendment protects “the right of the people to keep and bear Arms,” and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to “the people.” See also U. S. Const., Amdt. 1 (“Congress shall make no law … abridging … the right of the people peaceably to assemble”) (emphasis added); Art. I, § 2, cl. 1 (“The House of Representatives shall be composed of Members chosen every second Year by the people of the several States“) (emphasis added). While this textual exegesis is by no means conclusive, it suggests that “the people” protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community. See United States ex rel. Turner v. Williams, 194 U.S. 279, 292 (1904) (Excludable alien is not entitled to First Amendment rights, because “[h]e does not become one of the people to whom these things are secured by our Constitution by an attempt to enter forbidden by law”). The language of these Amendments contrasts with the words “person” and “accused” used in the Fifth and Sixth Amendments regulating procedure in criminal cases.
United States V. Verdugo-Urquidez, 108 L. Ed. 2d 222, 265 (1990)

The only requirement to be a member of The People is that they be a part of the national community OR have connected enough with this country to be considered a part of the national community.

Nowhere does it say you have to be within a certain age range. Nowhere does it say you must be of a certain skin color or sex. It doesn’t even say you have to be a citizen or a law-abiding.

They did note that an illegal alien is not part of The People.

Taking a simple example, you are a natural-born American Citizen, 13 years old. You are a member of The People.

Another, you are a recently released serial rapist, 35 years old. You are a member of The People.

Still another, you are the privileged son of a political elite, you are snorting coke from a whore’s belly when not drinking to excess. You, too, are a member of The People.

The next question to be asked: Does your conduct have any relationship to keeping or bearing arms?

The example I used today was of Lawn Darts. These were sold as an outdoor game similar to horseshoes. The difference being you didn’t need horseshoe pits and that the darts didn’t tear up a lawn the same way.

You put a hoop on the ground as a target. You then lofted these darts into the air. They came down point first and would embed themselves in the ground for scoring purposes.

Three children decided to become winners of the Darwin Award by catching one of these lawn darts and dying.

The Consumer Protection Agency banned them in the United States.

These were toys. They could be banned.

What if I were to take the same design and market them as a weapon? Same as a bow with arrows. Or a spear. Just something with a mortar like trajectory.

Now it is an arm.

Before addressing the verbs “keep” and “bear,” we interpret their object: “Arms.” The 18th-century meaning is no different from the meaning today. The 1773 edition of Samuel Johnson’s dictionary defined “arms” as “weapons of offence, or armour of defence.” Dictionary of the English Language 107 (4th ed.) (hereinafter Johnson). 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.” A New and Complete Law Dictionary (1771); see also N. Webster, American Dictionary of the English Language (1828) (reprinted 1989) (hereinafter Webster) (similar).
Heller, 467 U.S. 837

Those mortar darts certainly match the definitions of arms, in my scenario.

The state has made arguments, bordering on the frivolous, that components of firearms are not themselves “arms” and thus can be banned.

If a state can ban a magazine, does this mean that they can also ban a firing pin? A firing pin is not an “arm” in and of itself, but it is a component that is required in numerous firearms for them to function.

The courts have ruled in multiple cases that those things that are required to exercise a core civil right are also protected. See —Minneapolis Star & Tribune Co. V. Minnesota Commissioner of Revenue, 75 L. Ed. 2d 295 (1983) where they found that a tax on ink was unconstitutional.

Finally, we have “keep and bear”. These words have a plain meaning. Anything that hinders your ability to keep an arm is an infringement. This includes excessive taxes, onerous zoning regulations, limits on the number of arms you can purchase, limits on the types of arms you can purchase.

I can hear the anti-gunners yelling about full-scale weapon systems and nuclear weapons.

Guess what, those are arms. If I want to purchase a nuclear weapon to keep and bear, that is conduct by a member of the People that implicates the plain text of the Second Amendment.

Sometimes people will deny reality because it is too ugly.

As an example, if you die in your home and your cat finds your dead body, it will eat you. (This is not verified. Regardless, it does make the point.)

You might think that a nuclear weapon is just too dangerous for little ol’ me to own. That’s fine. You believe what you want to believe. That does not change the fact that it is still an arm.

You might think that a 9 year-old is too young to own a gun. They are a member of The People. Your belief does not trump facts.

You might think that a person credibly accused of domestic battery should not have the right to possess a firearm. That’s great. I might even agree with you.

They are still a member of the national community. They are still a member of The People. If they want to carry a gun then the plain text of the Second Amendment is implicated.

Once the plain text is implicated, the proposed conduct is presumptively protected by the Second Amendment.

It is now the state’s burden to prove that there is a history and tradition of regulations matching the modern infringement.

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By awa

One thought on “Plain Text, …”
  1. I once went round and round with a guy about what an arm and what bearing arms is. He insisted, even when presented with both historical and contemporary definitions of the words that the “right to bear arms” only applies to man portable weapons. Even when I pointed out the letters of marque clause which implies the existence of privately owned warships. Stupid is prevalent.

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