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Prior to the 20th century, I'm curious as to how the 2nd amendment was understood:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

There doesn't seem to be any (serious) controversy in the US about whether a person should able to own heavy military weaponry (mortars, grenade launchers, chemical weapons, artillery, mines, nuclear bombs, etc.) The only (serious) disagreement is around weapons that a person can carry on his or her person.

This seems a little arbitrary to me as I think the term 'Arms' referred to more than carried weapons at the time the constitution was written. Obviously, many of the weapons listed above did not exist at that time but there were at least cannon and mortars. Was the right to "keep and bear Arms" considered to extend to any form of weaponry in the early 19th century? If it was, when did this understanding change?

On determining a Google search that I felt wouldn't cause the ATF to knock on my door, it seems that these weapons fall under the category of "destructive device" per the National Firearms Act. I read on a non-authoritative site that a permit is required to own such a device and not all states allow them to be owned at all.

Prior to that law being passed were there weapons regulations at the state level anywhere in the US?

Please refrain from discussing the current politics around firearms. Answers should only address historical understanding and precedents. Thanks.

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    There are some cannons owned by private people, like 19 century cannons used in various re-enactments. There are also some historic military airplanes, tanks etc. I do not think there is or there was any restriction of this. – Alex May 10 '16 at 16:32
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    I don't think I would be able to purchase a working Howitzer today without some pretty special permits, right? I don't even know what law(s) restrict that. So assuming you are correct, something changed. When did that happen and how has it been determined that such restrictions do not violate the 2nd amendment? – JimmyJames May 10 '16 at 16:41
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    I think explosives have special classifications, and require special permits. So, one could probably purchase a Howitzer, but getting the required ammunition to shoot from it, would be the difficulty. One can buy fully working WW2 tanks (and newer sometimes), but you can't source the ammunition. – SnakeDoc May 11 '16 at 15:30
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    @SnakeDoc the ATF has specific regulations around artillery, yes. To legally own a tank or a howizer or an artillery piece, etc. (as collectors of historical military equipment actually do) it has to be permanently functionally disabled so that it's not capable of launching ordinance. (Not that you'd be able to source the shells anyway, yeah.) – HopelessN00b May 11 '16 at 19:13
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The official way we determine how the Constitution is "understood" is through US Supreme Court decisions, and there haven't been any on that particular subject.

There have been basically 3 definitive decisions on the 2nd amendment, only one of which came before the 20th Century.

Note first that prior to the 14th Amendment, the Bill of Rights was generally held to constrain only the Federal Government, not the states. So the 2nd amendment at that time would have been essentially preventing the Federal government from keeping weapons from state militias, but not prohibiting the states from regulating weapons any way they chose (including prohibiting their militias from having certain weapons). That's how you get "well-regulated" and an absolute right in the same sentence. They are referring to two different regulating entities.

After the 14th amendment, the bill of rights was essentially applied to every government within the USA at any level. This could be viewed as having "broken" the old view of the 2nd amendment.

The first attempt to grapple with this was United States vs. Cruikshank in 1875 (just after the 14th Amendment). This essentially said the 14th didn't apply to the 2nd Amendment, and any relief from infringing laws would have to be sought from state courts. This was reaffirmed twice before 1900.

The second, United States vs. Miller in 1939, held the SCOTUS could strike down state gun laws, but for a regulation to be unconstitutional it had to apply to a "well-regulated militia". So effectively, the 2nd amendment applied to militias, not to individuals.

The third was District of Columbia vs. Heller, in 2008. This kept Miller's finding that the SCOTUS had authority, but changed the interpretation of the amendment to make it apply to individuals, not just militias. This is effectively the regime we are under now.

Note that it isn't until you get to where the Second Ammendment is a personal right, unabridgeable by any US government at any level, that it matters much if a canon counts as an "arm". So it never had a reason to come up before.

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    OK, found this. en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Rights. Love learning new things. You don't need to explain any further. Great stuff. – JimmyJames May 11 '16 at 16:53
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    Great answer. More should remember that the 2nd begins with the stuff about state and well-regulated militia - not the right to bare arms. After all; Three drunk men with shot-guns in a pick-up truck, does not a "well-regulated militia" make. – Baard Kopperud May 11 '16 at 18:12
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    Worth noting as well that the phrase "well-regulated" had a different meaning in the 18th century than it does today. The common usage of the term at the time the constitution was written referred to functionality, not governmental oversight. At least as far as the original intent is concerned, there's nothing in the 2nd amendment about governmental oversight, or what we now call "regulation". – HopelessN00b May 11 '16 at 18:33
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    @T.E.D. I was referring to your statement: That's how you get "well-regulated" and an absolute right in the same sentence. They are referring to two different regulating entities. by pointing out that "well-regulated" wasn't actually referring to any regulating entity at all, because the definition of the term has changed entirely over the couple hundred years since then and now. But yeah, it doesn't matter. People (SCOTUS judges included) interpret things however the hell they want. – HopelessN00b May 11 '16 at 18:46
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    @T.E.D. I did read the link. It says that it only clearly started being interpreted that way in Gitlow v. New York (1925), and that was a 1st amendment case. So that's 57 years before the 1st amendment was incorporated. – suriv May 11 '16 at 22:19
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Did militia companies have cannons? The answer is Yes, they did.

For example, Chapter XLV Militia and Militia Companies, from The History of Detroit and Michigan: Or, The Metropolis Illustrated; a Full Record of Territorial Days in Michigan, and the Annals of Wayne County, Volume 1, by Silas Farmer (1889).

The Legionary Corps, created in Michigan by an act of the Governor and Judges in 1805, included cavalry, artillery, riflemen and light infantry; this was in addition to two regiments of infantry -- all militia.

On p. 317 describes a volunteer artillery company: "On December 27, 1821, on the occasion of the execution of two Indians for murder, the First Regiment of militia was called out and also the volunteer artillery company commanded by Captain Ben Woodworth."

Ben Woodworth kept a hotel, and held several minor posts during his long career in Detroit. The "volunteers" would fire their cannon on the 4th of July every year.

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    But these cannons were owned by the militias, not something owned by a private citizen - to bring with him, when he reported to the company. Rather than the militias purchasing and issuing the muskets, the militia-members were expected to bring their own. But that wasn't the case for heavier weapons. Also these militias were organized by the individual state to protect the state - not like today's "We hate taxes, must protect ourselves from the Federal Government, and should overthrow those jokers in the state capitol" militias. – Baard Kopperud May 11 '16 at 18:06
  • I have read (en.wikipedia.org/wiki/Destructive_device) that muzzle loading cannon are not considered "firearms", and are currently legal to own by private citizens (and always were). Traders (i.e. individuals and companies) in the US western territories sometimes carried small cannon to impress the locals. Think also of private ships in port. – hatchet-inactive May 11 '16 at 20:21
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There have been constant attempts, mostly by cities, to ban guns throughout the entire history of the United States. Nearly all of these thousands of attempts to ban guns, in one form or another, were voided by state court decisions. In some cases states have actually enacted modifications to their own state constitutions expressly making gun possession a right, just for the purpose of shutting down various city and town governments which try incessantly to ban them. The decision by the Georgia State Supreme Court in Nunn v. Georgia (1 Ga. (1 Kel.) 243 (1846)) is exemplary and typical (although in this case it was an actual Georgia state law that was being stricken down):

“The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right, originally belonging to our forefathers, trampled under foot by Charles I. and his two wicked sons and successors, re-established by the revolution of 1688, conveyed to this land of liberty by the colonists, and finally incorporated conspicuously in our own Magna Carta!” -- Decision of the Georgia Supreme Court 1846

Because of the actions of state courts it was rare for the US Supreme Court to rule on gun ban laws. The most famous such law which reached the high court occurred in the aftermath of the Civil War, when authoritarianism was at a high point in the country. This was the decision Presser v. Illinois, 116 U.S. 252 (1886). Presser affirmed the right of the states to ban people from forming private militias. It left the question of gun control ambiguous and implied that individual states could potentially enact gun control laws. At the time the decision was relatively ineffectual because most states were against gun control.

Overall, the situation in the 19th century was not too much different than it is today: a fight between urbanites and government powers trying to ban guns and farmers and other rural people trying to prevent that. The main difference is that in the 19th century the rural population was much larger, so there was a correspondingly larger failure on the part of gun control advocates.

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    This is outside the scope of the question which is about those weapons termed 'destructive devices' in the National Firearms Act. – JimmyJames May 11 '16 at 16:31
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I believe that the point of the Second Amendment was that the "common man" would not have enough firepower to fight the "government," but would have enough to form a militia to fight other "incidental" threats. (That is, something like muskets (or rifles) but no cannon, mortars or artilllery.) Such threats could include the following:

  1. Slave revolts, such as Nat Turner's uprising or John Brown's attempt to seize Harper's Ferry and arm the slaves.

  2. Indian attacks, especially for people on the western frontier.

  3. A re-invasion of the United States, or at least American-claimed territory in a future war. This actually happened in 1812, although the militia was not adequate to protect Washington D.C. Arguably this happened in Texas in the 1830s and 1840s if you consider it American "claimed" territory. Also, there was the cry of "54 40' or fight" regarding the Oregon territory.

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    OK but is there evidence for this? I'm not aware of anything at the federal level restricting access to any type of weaponry. Were there any laws at federal or state level that would indicate that certain types of military weapons could not be possessed by individuals or groups? – JimmyJames May 10 '16 at 19:45
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    @JimmyJames: I am going by the word "militia." That is, the government wanted the American people to be armed at the level of the average "militia," that is, for (local) self-defense, but not at the level of a "national" military. Or course, the "government' would (and did) suppress uprisings such as Shay's Rebellion, and would not want people to arm themselves "past" that level. – Tom Au May 10 '16 at 19:47
  • Hmm, I do want to point out that Washington as President preferred using the militia for anything instead of the (nonstanding) Army. And they were armed with about the same thing as the Army then. – SMS von der Tann May 10 '16 at 21:01
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    The 2nd amendment was influenced by the actions of the Restored Monarchy, following the English Civil War and the rule of Cromwell; to prevent future revolts they banned the possession of firearms by the common man in England. The early American's remembered the overbearing actions of their late masters, and took this precaution as a means to avoid similar laws in the new Republic. – Peter Diehr May 10 '16 at 21:55
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    The founding fathers' statements on the 2nd amendment are explicitly that it was intended as a check against government tyranny. In point of fact, the second amendment was intended to be used to allow citizens to bear arms against the government. Thomas Jefferson's famous quote The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants was in response to an armed tax revolt, so this answer is completely off-base regarding the intent of the 2nd amendment. Often, having the will to fight (or kill) is enough to dissuade an adversary, even if you can't win. – HopelessN00b May 11 '16 at 18:15
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I believe this flows from the first phrase concerning "Militia". Militias do did not use mortars, chemical weapons, etc, so the right does not extend to those weapons.

In support of this I found the following on a the site of the commander of a NJ Militia re-enactor:

Cannon were considered the queens of the battlefield. Infantry unsupported by cannon usually lost if the enemy had cannon. American Militia units were known for not standing up against British units with cannon support, since they rarely had any of their own.

I give this example of revolutionary militia because at the time that the Bill of Rights was ratified the militia of the recent revolution would have been in the framers' minds.

Insight into the thoughts and intentions of framers of the Constitution is important in interpreting the Constitution.

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    Can you provide any reference that US militias did not have cannon? My searches to attempt to find any information on this are coming up dry. – JimmyJames May 10 '16 at 16:02
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    2 problems: 'Rarely had' implies 'sometimes had' and that appears to be about the revolutionary war. The question is about history of the US post-constitution. – JimmyJames May 10 '16 at 16:35
  • @Jimmy James: you explicitly asked not to discuss modern politics, so I did not:-) I guess you can purchase a working howitzer (I read of such cases), your main problem will be obtaining munitions for it. – Alex May 10 '16 at 16:53
  • @Jimmy James: I have also seen a used Mig-21 for sale in the US. But I did not find matching missiles:-) – Alex May 10 '16 at 16:54
  • @Alex These responses don't seem to help answer the question. Am I missing something? – JimmyJames May 10 '16 at 17:04

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