Footnotes

Footnotes

1 Nuclear, chemical, or biological weapons
2 Larry Arnn, The Right of the People, Precepts (Claremont Inst., Claremont, Cal.), June 26, 1997, at 1.
3 Kevin D. Szczepanski, Searching for the Plain Meaning of the Second Amendment, 44 Buff. L. Rev. 197, 203 (1996). The argument holds that since "the exact scope of the individual right is not self-evident, and is not expressly defined in the Constitution," but that under the individual rights interpretation "the federal and the state governments may not infringe on the right," the logical conclusion is that an individual may keep and bear any weapons desired.
4 2001 U.S. App. LEXIS 22386 (5th Cir).
5 Id., at *23. See also, Carl T. Bogus, The History and Politics of Second Amendment Scholarship: A Primer, 76 Chi.-Kent. L. Rev. 3 (2000).
6 Emerson, at *25
7 Id., at *27
8 Id., at *145
9 Id., at *54.
10 Id., at *56.
11 Id., at *57.
12 Id., at *50
13 Id., at *57.
14 Id., at *58.
15 Stephen M. Griffin, Constitutional Theory Transformed, 108 Yale L.J. 2115, 2136 (1999).
16 William J. Brennan, Jr., Presentation to the American Bar Association (July 9, 1985), in American Constitutional Law 607, 609 (Mason & Stephenson eds., 8th ed. 1987).
17 Bork, Robert. The Tempting of America, at 144 (1990). See also Justice Antonin Scalia's highly readable and entertaining treatment of his brand of textualism, A Matter of Interpretation: Federal Courts and the Law. (Amy Gutmann, ed.) Princeton University Press, 1997.
18 Merriam-Webster's Collegiate Dictionary online. (http://www.webster.com/) The word "arms" in this military context has its origins in the 13th century Middle English armes, meaning "weapons."
19 Black's Law Dictionary 109 (6th ed. 1990).
20 26 USC § 5845 et seq.
21 26 USC § 5845(a)(1)-(2)
22 26 USC § 5845(a)(3)-(4)
23 26 USC § 5845(a)(6)
24 26 USC § 5845(a)(7), referencing the silencer definition in 18 USC § 921.
25 26 USC § 5845(a)(5). The Act uses the term "any other weapon" here to mean any of several unorthodox projectile-shooting devices.
26 26 USC § 5845(a)
27 18 USC § 921 et seq.
28 18 USC § 921(a)(3)(A)
29 18 USC § 921(a)(3)(B)
30 18 USC § 921(a)(3)(C)
31 18 USC § 921(a)(4). Interestingly, this section includes some potentially heavy weapons that might not be man-portable.
32 Declaration of Independence
33 Madison, James. The Debates in the Federal Convention of 1787 Which Framed the Constitution of the United States of America, at 453. The Lawbook Exchange, Ltd. (1999).
34 Id.
35 Alexander Hamilton, Federalist 29, Concerning the Militia, 1788
36 Id.
37 James Madison, Federalist 46, The Influence of the State and Federal Governments Compared, 1788
38 The Ratifications of the Twelve States, Reported in the General Convention (hereafter, Ratifications). The Debates in the Several State Conventions on the Adoption of the Federal Constitution (hereafter, Elliot's Debates), Volume I, 11. New York.
39 Ratifications, Elliot's Debates, Volume I, 13. Rhode Island.
40 Ratifications, Elliot's Debates, Volume I, 14. Vermont.
41 The Debates in the Convention of the Commonwealth of Virginia, on the Adoption of the Federal Constitution. June 27, 1788. Elliot's Debates, Volume III, p. 659
42 The Debates in the Convention of the State of Pennsylvania, on the Adoption of the Federal Constitution. December 11, 1787. Elliot's Debates, Volume III, p. 521
43 The Debates in the Convention of the State of North Carolina, on the Adoption of the Federal Constitution. July 24, 1788. Elliot's Debates, Vol. IV, p. 18
44 "That the people have a right to bear arms for the defence of themselves and the State; and, as standing armies, in the time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power." Vermont Constitution, Chapter 1, Article XV, 1777.
45 Pennsylvania Constitution of 1776, Declaration of Rights, Article 13. Quoted in The Founders' Constitution, Volume 5, Amendment II, Document 5. The University of Chicago Press. (http://press-pubs.uchicago.edu/founders/documents/amendIIs5.html)
46 For example, the punishments General Washington imposed on deserters William Timmans and Thomas Crawford illustrate one type of "bearing arms" and its consequences in war: "William Timmans late of the first Maryland regiment charged with Desertion, inlisting with the Enemy and bearing arms against these United States, Marauding, and burning the Houses of different inhabitants of the State of Maryland, found Guilty of the whole of the above Charges and sentenced to be hanged by the Neck till he be dead. . . . Thomas Crawford late of the same regiment charged with Desertion, Inlisting with the Enemy and bearing Arms against these United States, found Guilty of the two last Charges and sentenced to receive One Hundred lashes on his bare back." George Washington, November 3, 1781, General Orders. The Writings of George Washington from the Original Manuscript Sources, 1745-1799. John C. Fitzpatrick, Editor. Vol. 23. (http://memory.loc.gov/ammem/gwhtml/gwhome.html).
47 Letter from George Washington to William Livingston, January 24, 1777, The Writings of George Washington from the Original Manuscript Sources, 1745-1799. John C. Fitzpatrick, Editor. Vol. 07. (http://memory.loc.gov/ammem/gwhtml/gwhome.html).
48 Letter from Thomas Jefferson to William Short (March 28, 1823). Thomas Jefferson Papers (http://memory.loc.gov/ammem/mtjhtml/mtjhome.html). Transcribed and edited by Gerard W. Gawalt, Manuscript Division, Library of Congress.
49 Id.
50 Thomas Jefferson to William H. Cabell, Thomas Jefferson Papers (June 29, 1807).
51 Britain and France were at war in 1793, and at the time the U.S. was officially neutral. A French warship had pulled into Charleston, South Carolina, and its crew bought two American cannons from a private citizen in violation of a ban on arms sales to either belligerent power. Britain complained bitterly, but Jefferson thought the whole incident a trivial thing.
52 Thomas Jefferson, "Hamilton's Opinion on French armed vessel, the Little Sarah" (July 8, 1793). Thomas Jefferson Papers (http://memory.loc.gov/ammem/mtjhtml/mtjhome.html). Transcribed and edited by Gerard W. Gawalt, Manuscript Division, Library of Congress.
53 Id.
54 ". . . the militia of the State, that is to say, of every man in it able to bear arms; and that militia, too, regularly formed into regiments and battalions, into infantry, cavalry and artillery, trained under officers general and subordinate, legally appointed, always in readiness, and to whom they are already in habits of obedience." Thomas Jefferson to Antoine Louis Claude Destutt de Tracy, Id. (January 26, 1811).
55 Story, Joseph. Commentaries on the Constitution of the United States, § 1890. Boston, 1833.
56 "By the late returns of the Department of War, the militia force of the several states may be estimated at eight hundred thousand men, infantry, artillery and cavalry. Great part of this force is armed, and measures are taken to arm the whole. An improvement in the organization and discipline of the militia, is one of the great objects which claims the unremitted attention of Congress." Journal of the House of Representatives of the United States, 1789-1873. December 2, 1817. See also, transcripts from January 29, 1795 and March 30, 1798.
57 "Resolved, That the President of the United States be authorized to loan to the State of Ohio, for the term of seven years, twenty pieces of field artillery, with carriages complete, for the use of the artillery companies of militia, in the said State, under such regulations and restrictions, as to safe-keeping and redelivery, as the President may prescribe." Id., January 14, 1808.
58 Journal of the Senate of the United States of America, 1789-1873. March 24, 1826. See also, transcripts from April 10, 1828.
59 "Resolved, That the Committee on Military Affairs be instructed to consider the expediency of establishing a national foundry for the making of cannon, howitz, bombs, shot, and other material, for the artillery service of the United States, and for the militia." Id., March 29, 1832.
60 Id., February 18, 1836.
61 See transcripts from: April 5, 1810; May 15, 1826; and February 26, 1827.
62 "It will be proposed, that the number of one hundred thousand arms, shall be deposited in the respective Arsenals, a train of battering Artillery and every kind of Stores necessary thereto, field Artillery and every necessary equipment for an army of every species of troops." Journals of the Continental Congress, 1774-1789. March 13, 1787. See also, transcripts from February 1, 1777 and November 2, 1785.
63 Elliot's Debates, Volume V, April 10, 1787.
64 Basically, privateers were pirates working for the U.S. government as commerce raiders. They kept a percentage of all enemy cargo seized on the open ocean, selling it and using the proceeds to improve their ships and line their pockets. For more information read Zeinert, Karen (ed.), The Memoirs of Andrew Sherburne: Patriot and Privateer of the American Revolution (Linnet Books, 1993).
65 Id., March 4, 1776.
66 State v. Buzzard, 4 Ark. 18 (1842)
67 Id., at 21
68 "These rights are believed to be as essential to the enjoyment of well regulated liberty, and as fully guarded against infringement by the government, as the right to keep and bear arms. Their use, if subject to no legal regulation or limitation whatever, would tend to unhinge society, and most probably soon cause it either to fall back to its natural state, or seek refuge and security from the disorders and suffering incident to such licensed invasion of the rights of others, in some arbitrary or despotic form of government; while their unrestrained exercise, so far from promoting, would surely defeat every object for which the government was formed. And if the right to keep and bear arms be subject to no legal control or regulation whatever, it might, and in time to come doubtless will, be so exercised as to produce in the community disorder and anarchy." Id., at 21.
69 Id., at 20
70 Id., at 30. As an aside, Dickinson's idea of the government "granting" the right to keep and bear arms finds scant support in a textualist's understanding of the Constitutional framework. Rights are inherent to all humans, and do not come from government. The Constitution enumerates and protects rights; it does not "grant" them.
71 1 Ala. 612 (1840)
72 Id., at 617
73 1 Ga. 243 (1846)
74 Lumkin explicitly incorporated the Second Amendment's protections downward to the state level, saying "The language of the second amendment is broad enough to embrace both Federal and State governments -- nor is there anything in its terms which restricts its meaning.." Id., at 250 [emphasis Lumkin's]. This is remarkable, since the Fourteenth Amendment would not be enacted until decades later.
75 Id., at 251
76 Id.
77 U.S. Constitution
78 Green v. Bock Laundry Mach. Co., 490 U.S. 504 (1989)
79 Federal Rules of Evidence 803-805
80 New York Times Co. v. Sullivan, 376 U.S. 254 (1964)
81 Id.
82 Miller v. California, 413 U.S. 15 (1973)
83 Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)
84 Schenck v. United States, 249 U.S. 47 (1919)
85 Amendment VI, U.S. Constitution
86 Maryland v. Craig, 497 U.S. 836 (1990)