“A Good Musket” and Bearing Arms

I’ve been discussing whether the right to bear arms is infringed by laws limiting people to bearing only one “arm”, as a proposal by Illinois Gov. Quinn seeks to do.

Perhaps the best evidence for a singular reading of “arms” is the Second Militia Act of 1792, section 1, which provides, in part, that a militia member must:

provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock./

(emphasis added).

These requirements, which track Colonial milita rules, do not purport to define or even regulate the right to bear “arms;” rather, it sets a minimum for the arms militiamen mush furnish at their own expense. Its about duties, not rights. Still, the relevant section of the Act concludes, after many further details, that “every citizen so enrolled, and providing himself with the arms, ammunition and accoutrements required as aforesaid” shall have certain immunities from suit.

The reference to “arms” raises the possibility that the term could apply to a single firearm. But event this inference is not clear. The militiamen had to have bayonets (their officers, swords), which might be part of “arms” rather than “accoutrements.” To my untrained eye, a late 18th-century bayonet would be an accoutrement, because it looks difficult to wield independently of the musket, unlike modern bayonets, which are attachable knives. However, my first, impressionistic take on contemporary usage is that bayonets were called “weapons,” suggesting they were part of arms. For example, “Attention was paid to inculcate the use of the bayonet, and a total reliance on that weapon.” Another officer recommended that “only by vigorous and persevering charges with that weapon that an enemy can be dislodged from a strong ground.”

So it may well be that a long gun plus bayonet makes for “arms.” This supports the plural reading, but with unclear implications for current one-gun proposals: must they leave open also carrying serious edged weapons>? (Co-conspirator Kopel is on the cutting edge of this issue.)

Taking the Militia Act as strong evidence of the scope of gun rights has other interesting implications, as it quite clearly sets only a minimum for ammunition (more than twice that suggested by Gov. Ryan). Of course, it is easy to object that a semiautomatic magazine is different from the militia’s muzzle-loaded weapon, but I don’t find that compelling. Firepower is relative. If 20 rounds was normal in 1792, 60 would be weird and scary, but the militia was not limited on this axis. After all, once the ammunition runs out, the musket is not an “arm” or “arms,” its a stick.