Arms Resource Guide for U.S. Citizens

There is a great deal of incorrect information in circulation about the right of a U.S. Citizen to keep and bear arms. Some of this inaccurate information is very grave, so the citizen must have a resource guide such as this, in order to reference specific protections each citizen has in regards to the keeping and carrying arms of various sorts.

This paper will address many of the issues that are involved with citizens choosing, or not choosing to keep and bear arms. With this as the core of this resource guide, it will summarize a number of rights that citizens may not be aware of, and the procedures that should be followed.

The Supreme Court of the United States has clearly stated in multiple landmark cases that unless a U.S. Citizen is prohibited access to arms, by operation of a limited number of adversarial processes (such as the commitment of a lunatic to an asylum, or a convicting of felon, or a soldier being given a dishonorable discharge, and others) that all U.S. citizens at or above the age of majority have the absolute right to possess arms in their home or business, and to carry them upon their person for reasons of individual self-defense. Further, the Supreme Court has also expanded this to include defense of the country, or to quell insurrection or rebellion, and to enforce laws of the union. Thus, there is a core individual right to self-defense, and a core right to defend their nation in the event of an emergency.

The first matter that must be attended to in this resource guide is what exactly are “Arms” is they are described in the Bill of Rights, and how that are understood to be described by the Supreme Court. This was clarified recently in Caetano (2016) and Heller (2008) by the Court to be: "…any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.'" 554 U. S., at 581.”

 To someone who has not been professionally trained in combat or professionally trained in the use of arms and instruments of warfare, the description by the Supreme Court may initially confusing. I will endeavor to explain this in rather delicate terms, but first the reader must understand that roughly 3% of our national population has served in the military, and through the military they have become high proficient in the killing of other humans, and they have been taught methods by which the can engage and kill their enemy with their bare hands, a knife, a bayonet, a pointed stick, a rifle, a machine gun, pistols, revolvers, cannons, rockets, and so on. A typical citizen however, will not find it helpful to their personal and individual defense to drag around a 100 pound M-2 Machine gun, two boxes of ammunition, a mounting plate, and alignment devices as it is simply too impractical for self-defense, although it is completely for a U.S. Citizen to own one, and to keep it their homes (in a secure manner). Instead the court observes in this and in other cases on the subject, that a weapon (or "arms" to the professionals) that can be or might be used in a lawful manner for the purposes of self-defense, that they may be in the homes of a citizen, or the citizen may carry this/these weapons upon their person when outside of the home.

The Supreme Court also acknowledges repeatedly that pistols, revolvers, and handguns are one of the preferred means of American self-defense, and that the Second Amendment explicitly protects them. But, the Supreme Court has also taken this further, so as to include in the scope of normal arms of self-defense, shotguns, rifles, and even military arms such as the M1 Grande, M1A1, M16, AR-15, M-4, and so on.

Essentially, those arms which a U.S. soldier carries into battle in the present day, or any U.S. Citizen has carry in battle from the present day all the way back to 1792, and then even further back to the Petition of Right in 1628, Case of the Postnati (Calvin’s Case) in 1608, then backwards in time to Magna Carta in 1215, and even further backwards in time to the Assize of Arms of 1181 under King Henry II of England.

Many U.S. Citizens often are not aware that the Second Amendment was not created in a legal vacuum by the originalists (the group that wrote the Constitution, Bill of Rights, and Militia Acts), but rather they drew upon laws, practices and customs that were already in force at the time (in 1764-1792). These individual protections were covered in most state constitutions already. At the time, there was very little concern about access to arms by law-abiding adults, as the states jealously protected the individual rights to arms. When the history of the Bill of Rights is examined we see that the states did not trust the federal government, so there was a priority of protections the states wished to have applied to the federal government to protect the citizens of the states outside of the individual state constitutions and into the new federal Constitution. Modern day citizens are often quite blind to the history behind the Bill of Rights, how they are attached to the Constitution, and why they were put there in the first place. But, the history of “the right of the [individual] people to keep and bear arms” was codified and placed into law in 1181 and the protections of this right refined over 835 years to what it is today.

In the law there is a process called "Incorporation" or rather what is also called "Black's Incorporation Doctrine" in which Justice Black of the United States Supreme Court in a case called "In Re: Winship" stated that by operation of the 14th Amendment that Bill of Rights did not merely apply to the federal government, but also to the state, country, and local governments. Thus, he resolved a bit of a cloudy issue as since the ratification of the 14th Amendment a number of states had attempted to evade obedience to the law, and even today many state level court disobey the law by ignoring the Bill of Rights being applied to them through the Incorporation Process, and the Supreme Court of the United States has repeatedly rebuked and chastised state courts in this regard.

As the 2nd Amendment has been fully incorporated against the states in Heller, in 2008, and the Supreme Court has spoken very clearly and very forcefully that the states are not allowed to interfere with a citizen's right to arms. As no civil right or guaranteed right requires any form of license or permit; therefore, the right to arms can not be infringed upon by any form of licensing scheme, as these create impermissible infringements.

To put this is a very keen perspective, the Supreme Court of the United States has issued that when considering Second Amendment matters, that we must look towards their prior opinions and rulings and to apply First Amendment analogues to Second Amendment issues. In and McDonald v. Chicago, 561 U. S. 742, 750 (2010), the court says.

 “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), 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.” District of Columbia v. Heller, 554 U. S. 570, 582 (2008)

 Further, the Supreme Court continues a few pages later in Heller to point out that while self-defense, national security, hunting and other lawful activities that involve arms are lawful, that other activities are unlawful. Much in the same way that a printing press has a lawful use, such as the printing of a Holy Bible, the same printing press can be used in an unlawful manner such as in the act of counterfeiting or copyright infringement. Essentially the Court draws a bright line where lawful actions by a citizen which involve arms are embraced and protected by the Court, but on the other side of the line whereby the citizens may commit murder, rape, and other criminal deeds that there is no right, immunities, or privilege under the Second Amendment. To draw this argument up, and tie it neatly with a ribbon, it can be said that a printer who possess a printing shop can engage in lawful activities, or unlawful activities, where on the one hand his print press could be used to lawfully produce Bibles, but on a different day that exact same press could be used to unlawfully produce child pornography. Thus, “Freedom of the Press” applies to its lawful use, until it becomes a criminal tool and thus an item of contraband itself, having printed unlawful images. Arms are protected in a similar manner, that so long as they are used in a lawful manner they remain a protected item, much like the printing press.

 The Supreme Court of the United States explains that this right is restricted to traditionally lawful activities, much the same way there are certain limitations of what can be done with a printing press, Chalice, or Holy Bible.

“There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course, the right was not unlimited, just as the First Amendment’s right of free speech was not, see, e.g., United States v. Williams, 553 U. S. ___ (2008). Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.”

The Supreme Court of the United States also says:

 “It is settled by a long line of recent decisions of this Court that an ordnance which, like this one, makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official - as by requiring a permit or license which may be granted or withheld in the discretion of such official - is an unconstitutional; censorship or prior restraint upon the enjoyment of those freedoms." Staub v. Baxley, 355 U.S. 313, 322 . And our decisions have made clear that a person faced with such an unconstitutional licensing law may ignore it and engage with impunity in the exercise of the right of free expression for which the law purports to require a license.'' and “Shuttlesworth v. Birmingham (Alabama), 394 U.S. 147 (1969).

When the Supreme Court begins a paragraph with “It is settled” it means that no state court is allowed to rule to the contrary, or engage in frivolous argument to justify illegal state actions and that a State Court is violating the Constitution itself, and committing an act of what is called “Insurrection” if they try in any way to bring any court proceeding against a citizen who is not otherwise prohibited from the possession of arms.

For example, on my desk, there is a bible, and to possess this bible I did not need to seek any government permission, and no license was required to either read it, mark it with notes, to carry it upon my person, and to teach others in its use. As the Supreme Court of the United States ruled that in examining how the rights to arms are protected, that we must look to the 1st Amendment analogs to understand the intentions of the Founders of this country.

If someone were to take the Bible (or dozens of Bibles) and pound in the skull of a pacifist until they imparted death, the Bible itself would become a tool of homicide (the killing of another human), and the killing may be for an excused reason (justified homicide), or it may not be excused in the case of felony murder. The possession of the Bible remains legal, so long as it is not used as a tool of a crime, and so long as it is used lawfully, the possession is strongly protected under the Bill of Rights. To expand on this further, lets use an example of one priest taking a chalice (a type of cup used in Communion services) and uses it to crush the skull of another priest, and that the attacker has plotted and planned the attack for decades, and takes measures to hide the killing once it happens. The possession of the Chalice, as an instrument of religious service or ritual, is explicitly protected under the Bill of Rights, in the First Amendment… up to the point where it is converted to a murder weapon and the attacker runs afoul of the law.

Indeed, the only document that a U.S. Citizen needs to possess in order to possess arms is an unexpired U.S. Passport or Passport Card so that they can prove that they are a U.S. citizen as by federal statute this is the sole means by which U.S. Citizen status may be proven. 22 U.S. Code § 2705, 8 U.S. Code § 1101(a)(30). As the First and Second Amendment protect U.S. Citizens, a person first needs something to prove that they are indeed a U.S. Citizen, and once this is done the state can not interfere with their right to arms, even to the point that if the state merely believes that the person in a lawful resident of the United States (defined under the law as "The People") the First and Second Amendment protections automatically apply.

A U.S. Citizen needs no license to possess arms, any more that they need to seek government permission to possess a Bible…. or a printing press.

In fact, in Caeteno (2016), the Supreme Court of the United States blasted the Massachusetts Supreme Judicial Court for making "frivolous" arguments for gun permits and the banning of certain weapons. The Supreme Court then issued a scathing opinion in the matter and stated:

"The Court has held that “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,” District of Columbia v. Heller, 554 U. S. 570, 582 (2008), and that this “Second Amendment right is fully applicable to the States,” McDonald v. Chicago, 561 U. S. 742, 750 (2010). In this case, the Supreme Judicial Court of Massachusetts upheld a Massachusetts law prohibiting the possession of stun guns after examining “whether a stun gun is the type of weapon contemplated by Congress in 1789 as being protected by the Second Amendment.” 470 Mass. 774, 777, 26 N. E. 3d 688, 691 (2015)."

"The court also opined that a weapon’s unusualness depends on whether “it is a weapon of warfare to be used by the militia.” 470 Mass., at 780, 26 N. E. 3d, at 693. It asserted that we followed such an approach in Miller and “approved its use in Heller.” 470 Mass., at 780, 26 N. E. 3d, at 693. But Heller actually said that it would be a “startling reading” of Miller to conclude, “only those weapons useful in warfare are protected.” 554 U. S., at 624. Instead, Miller and Heller recognized that militia members traditionally reported for duty carrying “the sorts of lawful weapons that they possessed at home,” and that the Second Amendment, therefore, protects such weapons as a class, regardless of any particular weapon’s suitability for military use. 554 U. S., at 627; see id., at 624–625. Indeed, Heller acknowledged that advancements in military technology might render many commonly owned weapons ineffective in warfare. Id., at 627–628. But such “modern developments . . . cannot change our interpretation of the right.” Ibid."

Additionally, in Messerschmidt v. Millender, 132 S. Ct. 1235 the Supreme Court also stated that: "It bears repeating that the Founders adopted the Fourth Amendment to protect against searches for evidence of unspecified crimes. And merely possessing other firearms is not a crime at all. See generally District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008).

As the Supreme Court has established that citizens have an unrestricted right to arms and that they also hold that the mere possession of arms is no crime, and rather the Supreme Court states that arm in the hands of the public is a good thing. Also, that no state can license firearms ownership, purchases, or possession.

So the bottom line is that if you are a U.S. Citizen, and you have not been involved in very specific legal events that can strip someone of their civil rights, but a citizen can have virtually any weapons that they may wish to have (so long as it in not some sort of unstable weapon that will just randomly explode, denotate, deflagrate, or explode and take out a city block), and you need no permit, no permission, and no license. Indeed, a tank of propane for a backyard BBQ is more dangerous that a machinegun and the propane tank can rupture or leak, and level several houses.

What does come into play is when a person commits a crime and uses arms of any sort as a tool in the committing of that crime, and in such cases the law needs to be harsh on the treatment of the offender.

There are also restrictions on the mentally ill possessing arms, which date back to the Militia Acts of 1792 and 1795. In addition, when Congress enacted the Militia Acts they carved out an exclusion of the right to anybody who had ever been convicted of an "infamous crime" or rather what we would today regard to be a felony. As the mentally ill (“lunatics” was the exact word used) and the felons can not be trusted with arms due to their prior demonstration of a lack of self-control, or of not being of sound mind.

There is also a notable problem in regards to felons being possession of arms, and a great v of federal court cases hinge and pivot around a person who had previously been convicted of a felony, banned from possessing arms but unlawfully being in possession of arms, which they are forbidden to possess.

Arms may be kept in the home, or carried on the person with the state forbidden to encroach in the right, except in a narrowly defined legal process. No license is needed to possess arms in the home in any state, and no license is required to possess and to carry arms, to include pistols, revolvers, or machine guns in any state. The only caveat is that while the state is forbidden to control the question of “IF” a firearm is being possessed or carried, the state is allowed to control through the use of a license how the arms to be carried, or by application of federal statutes on criminal law such as 18 U.S. Code § 922 to exclude certain person from access not merely to firearms, but to any form of arms. The federal government and the state government are also allowed to exclude arms from certain government locations that are “sensitive” but they can not be excluded from all government buildings.

This also includes retail transactions in arms (of any sort), as the seller needs some means of determining that the person they are selling to is not an illegal alien, someone who has been kicked out of the military under a dishonorable discharge, a lunatic, a child (not yet achieving the age of emancipation), and so on. But, this is easily enough resolved by the buyer of arms merely presenting a U.S. Passport or Passport Card, or a State issued drivers license which the seller then authenticates against a federally maintained database of prohibited persons, and through which the Federal government confirms the person is a legitimate U.S. Citizen. Once this is established, through a 10-15 second inquiry, the retail purchase can then progress and be consummated.

Of course, it is unwise to brandish or display arms as this could lead to a public panic or a disturbance of the peace. It is also unwise to possess arms unless the person is properly trained in their use, and they are capable of handling arms in a safe manner. Further, it is profoundly unwise and indeed highly irresponsible to acquire arms (including knives, impact weapons, pistols, revolvers, rifles, stun guns, or anything else “takes into his hands, or useth in wrath to cast at or strike another” as the Supreme Court stated) unless the citizen has the means to properly keep these weapons secure and out of the hands of children, lunatics, felons, and other people who might use them in an unlawful manner.

As a general guide, it is wise for the state to use a person's state-issued motor vehicle drivers license as an index point to query federal firearms databases in order to transact a retail of arms of any type to include not merely guns and ammunition, but also knives, swords, and any other object that is commonly used by the military, including military uniforms, hats, military backpacks, and anything of military value or of value in personal defense. But, while a state issued ID is a calm solution to this matter as it would be used to control the sale of arms, the state would be prohibited in charging a fee for it, because as the court said in Staub v. Baxley no fee can be charged. A U.S. Passport, on the other hand, is not issued as a license, but rather as a means of documenting U.S. Citizenship. If both a Federally issued Passport, plus a state issued drivers license or state issued photographic ID were required to be presented for a retail arms transaction to take place, it would achieve the safety concerns of improper people getting access to arms. 

 In Massachusetts, New Jersey, New York, California, and several other states their state laws regarding arms licensing are best described as a “Hot, Steamy, Festering Mess” and that for the most part their laws are automatically null and void, and the U.S. citizen is under absolutely no requirement to obey them. All that a citizen needs in order to possess arms is something that proves that they are a U.S. Citizen, nothing more and nothing less.

In the Landmark case of Marbury v. Madison the Court observes:

 “It is also not entirely unworthy of observation that, in declaring what shall be the supreme law of the land, the Constitution itself is first mentioned, and not the laws of the United States generally, but those only which shall be made in pursuance of the Constitution, have that rank. Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument.” Marbury v. Madison () 100 U.S. 1

 Additionally, the Court rules:

"Where rights as secured by the Constitution are involved. There can be no rule making or legislation which will abrogate them." - Miranda v. Arizona, 384 U.S. 436 at 491 (1966).

 “Since an unconstitutional law is void, the general principles follow that it imposes no duties, confers no rights, creates no office, bestows no power or authority on anyone, affords no protection and justifies no acts performed under it; No one is bound to obey an unconstitutional and no courts are bound to enforce it.” 16 Am Jur 2nd Section 177.

 “All laws, rules and practices which are repugnant to the Constitution are null and void.” Marbury v. Madison, 5th US (2 Crunch) 13 7, 180.

 “The claim and exercise of a Constitutional right cannot be convened into a crime." Miller v. U.S., 230 F 486 at 489.

“The individual may stand upon his Constitutional rights as a citizen. He is entitled to carry on his private business in his own way. His power to contract is unlimited. He owes no duty to the state or to his neighbors to divulge his business or to open his doors to an investigation, so far as it may tend to criminate him. He owes no such duty to the state, since he receives nothing therefrom, beyond the protection of his life and property. His rights are such as existed by the law of the land long antecedent to the organization of the state, and can only be taken from him by due process of law, and in accordance with the Constitution. Among his rights are a refusal to incriminate himself, and the immunity of himself and his property from arrest or seizure except under a warrant of the law. He owes nothing to the public so long as he does not trespass upon their rights.”– Wilson v. United States (1911), 221 U.S. 361 at 42

 “A State [or the United States] may not impose a charge for the enjoyment of a right granted by the federal Constitution.” - Murdock v. Pennsylvania 319 U.S. 105 at 113 (1943).

"If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the Constitution itself becomes a solemn mockery….” - United States v. Peters, 5 Cranch I 15, 136.

 "Because of what appears to be a lawful command on the surface, many Citizens, because of their respect for what appears to be law, are cunningly coerced into waiving their rights due to ignorance.” U.S. v. Minker, 350 US 179 at 187.

This ultimately comes down to a personal choice, much like the choices that a person makes about religion or faith, or the works they write or the art they create… they may choose to possess and carry arms or weapons, or they may choose not to. But, much the same way that our collective national conscience will not tolerate the government cramming religion down the throats of school children, and it is considered improper for an individual to try to cram their faith down upon another person, so must the right and privilege of arms be regarded. The person who chooses not to keep or bear arms must have their personal choice respected, and the person who wishes to learn martial arts (which indeed firearms training is) must be allowed to pursue their own conscience in the matter, and even to join the military, and to become a professionally trained killer of other humans (which in reality, soldiers are). But, it is still a matter of person choice, either way, and each side must respect the other, for there to be a balance.

In does bear mentioning that the United States of America is a nation of warriors, and we are a strong and mighty nation. In Article I of the Constitution, there are the Militia Clauses, from which the Second Amendment emerges as one creates the other through the Amending Clause of the Constitution. Then, the Second Amendment invocation for a “well regulated Militia” is well defined the next year with the Militia Acts of 1792, and then the Militia Act of 1795. Thus, from Constitutional Convention in 1787 to the Militia Act of 1795 Congress well defines the purposes and boundaries of Arms Control.

Before a person seeks to own arms, it is well advised that they should seek out the published opinions of the Supreme Court of the United States in all of the aforementioned cases, and read every word of the opinions (to include both the Assenting and Dissenting sides), and then to obtain copies of the Militia Acts of 1792 and 1795 and only then consider moving forward with a decision to own arms or not to own arms, and what arms to obtain instead of other arms.

 But, it still remains a personal choice, well outside of the state control.