Just to Be Safe, Let’s Keep Ignoring What “Arms” Meant in 1791

The Supreme Court held in District of Columbia v. Heller and reaffirmed in New York State Rifle & Pistol Ass’n v. Bruen that “arms,” referred to in the Second Amendment, are common weapons useful for lawful purposes. The majority argued that militiamen fought with whatever common weapons they had on hand for civilian purposes, such as self-defense and hunting. Therefore, under Heller, only those weapons are covered by the Second Amendment. However, Heller did little to ground the “self-defense” theory of “arms” in original public meaning or even actual history.

Commonality and lawful purpose have proved difficult for lower courts to define, as evidenced by conflicting rulings on whether AR-15s are “arms” under the Second Amendment. This Essay contends that Heller’s definition of “arms” is incorrect as a matter of history, which helps explain the struggle of lower courts to employ that definition. The philosophy, politics, and technology of the era suggest that the militia served a military function and therefore required military weapons. The militia were to be citizen-soldiers, protecting their communities, not simply engaging in self-defense.

Consistent with that mission, the militia generally used military weaponry, often provided by their communities, states, or private groups. Early American policy relating to the militia focused on how to improve and regularize its weaponry for military ends. Civilian weapons used for self-defense or hunting were understood to be militarily useless and were only employed out of desperate necessity.