What did it mean to 'bear arms' in 1791?

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In the case of D. C. v Heller shortly to be decided by the US Supreme Court, the central issue is the meaning of the Second Amendment to the US Constitution:

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.

One of the issues is whether the Second Amendment guarantees a private right, that is, a right of individuals to own and carry arms, or a public right, that is, a right of militias to own and carry arms, or both. Many advocates of restrictions on the right of individuals to own and carry arms promote the interpretation that the Second Amendment is meant only to protect the organized militia units, which, they typically argue, are now subsumed under the National Guard. For advocates of this interpretation, there is no individual right to own and carry weapons.

One aspect of this argument is the interpretation of the leading clause of the amendment. Advocates of the "public only" interpretation consider this clause to indicate that the needs of the militia are the exclusive motivation for the Second Amendment and that its scope is therefore limited to the militia. This issue has been discussed here on Language Log in the posts Once is cool, twice is queer and The right to keep and bear adjuncts.

Among the numerous amicus briefs submitted is the so-called "Linguists' Brief", written by Dennis E. Baron, Richard W. Bailey, and Jeffrey P. Kaplan. This brief argues that the Second Amendment protects only a public right on two grounds: the afore-mentioned interpretation of the leading clause, and the argument that the expression "bear arms" refers only to the organized military use of arms, not to individual use. They claim that the term "bear arms" is "an idiomatic expression that means 'to serve as a soldier, do military service'".

If true, this would be quite surprising, since there is what seems to me to be a very strong case, nicely put in the The Cato Institute Brief, that the right to bear arms in English law prior to the Bill of Rights was an individual right and that the Founders saw the Second Amendment and similar provisions in state constitutions as continuations and extensions of that tradition. A view contrary to that of the Linguists' Brief is presented by Clayton Cramer, a software engineer and historian, and Joseph Olson, a historian, in their paper What did 'Bear Arms' Mean in the Second Amendment. English usage of the late 18th century is not my area of expertise, but it seems to me that it is the non-linguists who have the stronger case.

The Linguists argument, like that of several previous authors on this topic, is that the phrase "bear arms" when used without modification in documents of the relevant period almost always is shown by context to refer to the military use of arms. Cramer and Olson, on the other hand, argue that to the extent this is true, it is due to selection bias:

If you look in databases consisting almost entirely of government documents, it should not be a surprise that most of the uses will be governmental in nature.

Searching more comprehensive collections of English language works published before 1820 shows that there are a number of uses that are clearly individual, and have nothing to do with military service.

Many of Cramer and Olson's examples are taken from British works, but this appears to me to be legitimate. In 1791 formal written American English usage was not, to my knowledge, significantly different from that of Great Britain. One such example is from Debrett's 1797 Collection of State Papers Relative to the War Against France, in a discussion of orders from the French Army on the occupation of "the country beyond the Rhine":

The inhabitants of the villages, who shall take arms against the French, shall be shot, and their houses burnt, as shall likewise all who bear arms without permission from the French generals.

While the phrase "take arms against the French" refers to military action, possibly collective rather than individual, "bear arms" here clearly refers to individual carrying of weapons. As Cramer and Olson note, it could refer to militia activity only in the extremely unlikely event that French generals were in the habit of giving permission to enemy militia to fight against them.

The case against the Linguists' Brief, though, does not rely entirely on British examples. Cramer and Olson cite the following passage about the history of Bologna from John Adams' 1787 A Defence of the Constitutions of the Government of the United States of America:

In order to purge the city of its many popular disorders, they were obliged to forbid a great number of persons, under grievous penalties, to enter the palace: nor was it permitted them to go about the city, nor to bear arms.

This is certainly a reference to individual bearing of arms, not to a militia.

Another example is the constructionof the term to "bear arms" by James Wilson. In the following passage from his Lectures on Law, he equates the passage in the Constitution of the State of Pennsylvania protecting the right "to bear arms in the defence of themselves" with the right of personal defense of one's self or house:

Homicide is enjoined when it is necessary for the defence of one's person or house.

With regard to the first, it is the great natural law of self-preservation, which, as we have seen, cannot be repealed, or superseded, or suspended by any human institution. This law, however, is expressly recognised in the constitution of Pennsylvania. "The right of the citizens to bear arms in the defence of themselves shall not be questioned." This is one of our many renewals of the Saxon regulations. "They were bound," says Mr. Selden, "to keep arms for the preservation of the kingdom, and of their own persons."

Wilson was a signer of the Declaration of Independence, a member of the Committee of Detail, which drafted the Constitution, and one of the six original justices of the Supreme Court, nominated by George Washington. He clearly took the right to "bear arms" to be an individual right.

An example discussed by both sides comes from a proposed amendment to the draft of the Constitution proposed by dissenting Pennsylvania delegates to the convention to ratify the US Constitution:

the people have the right to bear arms for the defense of themselves and their own state, or the United States, or for the purpose of killing game

There can be no question that bear arms here is not limited to military activity on the part of a militia.

Indeed, it is not clear to me that some examples cited by the linguists as evidence that bear arms refers to militia activity are correctly analyzed. Consider their discussion of James Madison's original draft of the Second Amendment:

The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.

They claim that in the italicized religious scruples clause the phrase "bearing arms" can have no other meaning than "to serve as a soldier, do military service, fight", and that therefore the same term in the portion that was retained in the final version of the Bill of Rights must have the same meaning. The first claim is true: the phrase "bearing arms" in the religious scruples clause refers to military service. The second claim, that this requires the same term to have the same narrow meaning in the main portion of the amendment, is false. The narrowness of the meaning of "bearing arms" in the religious scruples clause flows not from the intrinsic meaning of the term but from the fact that we know that some people have religious scruples against warfare, while few if any people in late 18th century America, had religious objections to all uses of weapons. Had there been a vegetarian, pacificist sect in late colonial America that objected on religious grounds to all uses of weapons, even for personal defense, hunting, and target shooting, we would have no difficulty in reading the religious scruples clause as referring to all uses of weapons.

The linguists' approach to examples that they acknowledge contradict their claim that bear arms always refers to collective military activity is far from persuasive: they simply assert that such examples are "unidiomatic", "awkward", or "idiosyncratic". For example, here is their comment on the Pennsylvania dissenters' example above:

And adding, as did the Pennsylvania dissenters, the "for the purpose of killing game" language bends the idiom so far that it no longer is recognizable. It is decidedly unidiomatic. As Garry Wills aptly has put it, one does not bear arms against a rabbit… The statement by the court below that "it would hardly have been unusual for a writer at the time (or now) to have said that, after an attack on a house by thieves, the men set out to find them 'bearing arms'" appears equally unidiomatic… Not only would it have been unusual, it would have been awkward and idiosyncratic.

The logic here is circular: because they believe the expression "to bear arms" to have only a collective, military meaning, they dismiss contrary examples. There is no analysis of variation in usage supporting their contention that such examples are erroneous or idiosyncratic. The statement that they quote from Gary Wills, that "one does not bear arms against a rabbit", is irrelevant. The reason one does not "bear arms against a rabbit" is that "against" implies hostile action, but one does not normally consider rabbits to be the enemy, even if one is hunting them for their food and skin. If, in a postapocalyptic world, we were threatened by three meter tall intelligent carnivorous rabbits, we certainly might bear arms against them. A person who hunts rabbits as they are today cannot be said to bear arms against rabbits, but he or she may indeed be said to bear arms during the hunt.

In sum, while the Linguists' Brief may well reflect the view of the meaning of "bear arms" in 1791 formed on the basis of its authors experience reading material from that period, there appear to be clear and convincing examples of the use of this term in an individual, non-military, sense. The characterization of such examples in the Brief as anomalous is not supported by any sort of scientific linguistic analysis.


Note on Comments: Please confine comments to the question of the meaning of the Second Amendment and in particular to the meaning of "bear arms". Many people have strong feelings about guns. This is not the place to discuss them. In particular, please note that the meaning of the Second Amendment is a distinct question from what is good policy. It is quite possible to read the Second Amendment as protecting an individual right to possess and carry weapons while believing this to be poor policy, or to read it as protecting only the right of the people to organize militia, while believing that individuals ought to be able to possess and carry weapons.



70 Comments

  1. John Cowan said,

    June 18, 2008 @ 2:04 am

    In my view, "bear arms" clearly means and meant "carry weapons for whatever purpose and in whatever role", but that is not inconsistent with reading the Second Amendment as referring exclusively to the militia, whether organized or unorganized or both. A great deal of legal language has non-compositional meaning to one degree or another. For example, being rude to people is generally considered to be bad behavior, but for a Federal judge to be summarily removed from office for rudeness, because judges are said to hold their offices "during good behavior", would not be sound constitutional law.

  2. Frank said,

    June 18, 2008 @ 2:15 am

    The real story here seems to be that academics are not immune to philosophical and political biases. I hope the credentials of the amici curiae do not sway readers to ignore their poor reasoning.

  3. Timon said,

    June 18, 2008 @ 2:50 am

    Is the weight of the weapons in question discussed much in these briefs? I don't think 'carry' or 'handle' is the right mental frame for the burden of a device that was probably taller than most of the people using them.

    In any case, the 2nd Amendment simply means, "the people are the militia." It is much more important to grapple with the concept of a militia than the 'bear' question.

  4. Adam Roberts said,

    June 18, 2008 @ 3:24 am

    General point: "bear" means carry. A person who "bears arms" is presumably one who carries a gun (for example) around with them all the time. A soldier does this; a civilian not.

    Specific point: "one does not bear arms against a rabbit". I take the point that the reason this sounds like a risible thing because of the 'against'; but to my ear 'bear arms' implies an 'against'. Of course this might be because my thinking is informed in a circular manner (because I'm starting from the position that bearing arms in what soldiers do, as you say above); or it might be purely subjective … I could be thinking, glancingly, of things like Hamlet's talks of taking arms against a sea of troubles and so on. But it could be interesting to check whether a phrase like 'bear arms' is often followed in usage by an 'against' or something similar.

  5. Janice Huth Byer said,

    June 18, 2008 @ 3:49 am

    This and earlier LL posts taken together are truly the definitive analyses that the Supremes should be made aware of. Though, a liberal, i've long conceded the Founders undoubtedy appreciated the role guns played in the lives then of free men, especially in their safeguarding of citizens from organized military including militias. Trying to explain the language as it was meant in those days by what it can scarcely mean now, is a tired old trick that demeans both sides.

  6. Karen said,

    June 18, 2008 @ 5:57 am

    The "well-regulated militia" is a reason to allow people to bear arms, not a limiting factor.

  7. DYSPEPSIA GENERATION » Blog Archive » What did it mean to ‘bear arms’ in 1791? said,

    June 18, 2008 @ 7:48 am

    [...] Read it. [...]

  8. Zubon said,

    June 18, 2008 @ 8:38 am

    General point: "bear" means carry. A person who "bears arms" is presumably one who carries a gun (for example) around with them all the time. A soldier does this; a civilian not.

    I submit that many people who argue for an individual right do, in fact, carry guns around in their civilian lives. I have no idea how many people around me are armed, but there are a great many concealed carry permits out there. Some people are always armed, others keep weapons handy in their homes and vehicles.

    I would also suggest that "all the time" is not a relevant consideration for interpreting the phrase. I may not not "bear arms," but I would say that I "eat lunch." I do not eat lunch all the time, generally for less than an hour a day. Back to Hamlet, he may have been in continual practice, but we never see him fencing.

  9. Mark P said,

    June 18, 2008 @ 9:02 am

    It seems to me (a poor, ignorant layman) that the language used is becoming somewhat archaic. To say "to bear arms" sounds affected. Thus, it seems that the best way to understand what was meant is to look not at what we think the terms mean today, but at what they meant at the time. That makes a fuller linguistic analysis all the more important. I suppose that all legal briefs are adversarial, so perhaps leaving out relevant analysis is expected and acceptable, but as a professional in my own field, I would hate to be spanked by a couple of guys who work in a different field.

  10. Ralph said,

    June 18, 2008 @ 9:23 am

    Of the 20 meanings for the transitive verb 'bear' in Webster's An American Dictionary of the English Language (1828), the only one that contains the word 'arms' is the third:

    "To wear; to bear as a mark of authority or distinction; as, to bear a sword, a badge, a name; to bear arms in a coat."

  11. Craig Russell said,

    June 18, 2008 @ 10:10 am

    I was at first attracted by the public "bear arms only for the purpose of a militia" interpretation, based on the existence of the opening clause–why else would it be there? But the more I think about it, the weaker this interpretation seems. If that was what the founders meant, why wouldn't they have just written something along the lines of "the right of the people to form well-regulated militias shall not be infringed"?

    It also seems curious to me that people spend so much time focusing on "bear arms" when the actual wording is "*keep* and bear arms". To me, "keep" here implies owning and storing the weapons privately–and wouldn't this have been the situation in the 18th century, that militias would be formed of people who would bring their own weapons from home?

    I find it difficult to imagine that what the founders had in mind was that people should be allowed to own and store weapons in their personal homes which they would only be allowed to use publicly–especially given the realities of 18th century life for so many (living on frontiers, feeling threatened by Indians, needing to hunt for food, etc.).

    And yes, I agree that this is obviously a totally separate issue from whether this is good public policy today.

  12. Kate said,

    June 18, 2008 @ 10:29 am

    Wow, this is a great example why splitting linguistic hairs can really detract from serious discussion of political issues. It's clearly derailed some of the discourse about whether or not the private ownership of weapons makes any actual sense today.

    Did Machiavelli happen to write about this tactic? It would seem to be worthy of his attention.

  13. Richard Hershberger said,

    June 18, 2008 @ 10:30 am

    The first two examples that are presented as clearly referring to individual bearing of arms seem to me not on point.

    No, a Napoleonic general would not grant permission to enemy militia to fight against him, but he might well organize a local militia to fight for him. Many of the soldiers fighting for the French were not in fact Frenchmen. Conquerors organizing local militia is hardly an unfamiliar phenomenon nowadays, either. So the excerpt might mean that only militias organized by the French were permitted, and not discuss individuals carrying weapons at all.

    As for the Bologna discussion, again, it might be talking about private militias, as northern Italian nobility were wont to form. Think Montagues and Capulets.

    I don't reject the possibility that these quotations referred to individuals, but the case has not been made.

    The Pennsylvania quotation is much more on point. The argument about it seems to be whether or not it is an outlier. The argument that it is is not necessarily circular, but it would require an analysis of the larger corpus. Given the assertions of clarity made about the earlier quotes, an impartial analysis clearly would be difficult.

  14. Kate said,

    June 18, 2008 @ 10:30 am

    * OF why

  15. herbm said,

    June 18, 2008 @ 10:53 am

    Actually it is ONLY the "keep" portion of the 2nd Amendment that is at issue in the Heller case.

    He asking to have an operational defensive firearm (e.g., a handgun) in his home. There is no issue of carrying or bearing it in public — in this case.

    He does that during the day as a security officer where he protects goverment building and employees.

    He wants to exercise the same right in his home for his own protection.

    And BTW, the 'militia phrase' sets the context for which arms are protected: Those needed when the unorganized militia is called to server in organized militia.

    This means the 2nd Amendment protects (at least) those arms similar to the ones carried by the individual infantryman, the (paramilitary) police, or commonly available to criminals.

    Justice Ginsberg understood this when she mentioned that this would mean automatic rifles are protected at least as much as a hunting shotgun.

    No gun control is effective anyway — it is all an egregious violation of human and civil rights.

    NONE, not event he Brady/NICS background checks have been (or likely can be) SHOWN to work.

    None of the CDC, the National Academy of Sciences of Sciences, nor DoJ were able to find that ANY gun control reduces VIOLENT CRIME, MURDER, SUICIDE or ACCIDENTS in any significant manner.

    Don B. Kates and Gary A. Mauser, "Would Banning Firearms Reduce Murder and Suicide? A Review of International Evidence" (June 6, 2006). ExpressO Preprint Series. Working Paper 1413.
    http://law.bepress.com/expresso/eps/1413
    http://law.bepress.com/cgi/viewcontent.cgi?article=6426&context=expresso
    <<In this connection two recent studies are pertinent. In 2004 the U.S. National Academy of Sciences released its evaluation from an review of 253 journal articles, 99 books, 43 government publications and some empirical research of its own. It could not identify any gun control that had reduced violent crime, suicide or gun accidents.(15) The same conclusion was reached in a 2003 study by the U.S. Centers for Disease Control’s review of then-extant studies"(16)

    (15) Charles F. Wellford, John V. Pepper, and Carol V. Petrie (eds.),
    FIREARMS AND VIOLENCE: A CRITICAL REVIEW
    (National Academy of Sciences, 2004). It is perhaps not amiss to note that the review panel, which was set up during the Clinton Administration, was almost entirely composed of scholars who, to the extent their views were publicly known before their appointments, favored gun control.
    (16) “First Reports Evaluating the Effectiveness of Strategies for Preventing Violence: Firearms Laws” (CDC, 2003)
    >>

  16. Michael Garofalo said,

    June 18, 2008 @ 11:09 am

    Let's not forget the purpose of the Constitution and Bill of Rights. The Constitution is a document that limits the power of the government by permitting only what is included, not one that defines the power by allowing anything not included. The Bill of Rights, on the other hand, is not a limiting document at all. The government cannot prohibit any action based on its non-inclusion in the Bill of Rights; the first ten amendments (and the non-clarifying ones that followed) were there as safeguards of the people's rights in case the government attempted to overstep founding philosophy and do something not specifically granted it by its bounding document.

    That being said, look again at the Second Amendment. It does not say that anyone can be kept from bearing arms (whether as a soldier or civilian), but that the government cannot abridge the right of bearing arms (again, the soldier/civilian argument is irrelevant, since both are implicitly protected by original intent theory). If the linguists quoted above are correct, and the drafters and signers intended the amendment to protect only the maintenance of a militia, that does not change the intent so drastically that gun bans would be constitutional.

  17. Mark P said,

    June 18, 2008 @ 12:20 pm

    The reference to a well-regulated militia could be thought of as expressing a governmental interest in preserving an individual right rather than a governmental limit on an individual right.

  18. Dennis Brennan said,

    June 18, 2008 @ 12:33 pm

    Isn't it just as important to analyze the whole phrase "the right of the people to keep and bear arms"?

    The purpose of the amendment is clearly to establish that *something* is a "right", and that but for this provision in the Constitution, that "right" could have been curtailed.

    The analysis in the blog post analyzes two different possible things that could be identified as that right: the right to serve as a soldier/do military service, and the right to possess a weapon.

    I'm neither a historian nor a scholar of the period, but it seems to me less likely that the "right" that the drafters of the amendment were worried about was the right to serve as a soldier or do military service– is it really possible that the drafters were concerned that a citizen might desire to be a soldier or militiamen but be barred by the federal government from so serving?

  19. dr pepper said,

    June 18, 2008 @ 1:20 pm

    Hmm. I once knew someone who asserted the the 2nd Amendment meant that individuals had the right to have weapons so that they could shoot the government's well regulated militia.

    As for the application of "bearing arms", in european tradition there were often restrictions on various parts of the population in tine of peace, so this could be viewed as another assertion of democracy.

    Still it seems to me, that the amendment should be analyzed in terms of its practical role in the laws made after the Constitution was enacted. What did the Federalist administrations think? Did they accept that, say a person living in a city could mount a small cannon on their front balcony? Or keep a supply of gunpowder bombs at the ready in a carriage? My guess is that there was an implicit limit to the power of weapons deemed appropriate to different situations, and which could certainly be extended to the kind of guns we have today.

  20. Brett Dunbar said,

    June 18, 2008 @ 2:00 pm

    It could be interpreted as protecting the state's right to have an organised militia by preventing the federal government from prohibiting the militia from drilling and having weapons. This would make it a fairly narrow amendment with little relevance to any situation that has ever arisen, rather like the fourth.

  21. anti-fascist said,

    June 18, 2008 @ 2:21 pm

    Dr pepper,

    Bombs and cannon are considered "munitions" by definition by the ATF, and are held to a higher level than "firearms". This is how they make it illegal to own a grenade today.

    The second amendment only says "arms". I believe this meant, in relation to the concept of a militia made of able bodied civilians, that people should be allowed to own what we now call munitions as well as firearms. Purpose being that the general populace should be trained and skilled in the use of all contemporary weaponry for defense of our sovereign territory should we be invaded. Anyone who has spent time with our most important father, Thomas Jefferson, will know that he also enamored the idea that these same civilians might be able to repel an attack on our liberty from within. This necessarily suggests that the civilian population be armed to its maximum potential. These same fathers also deplored the concepts of a standing army, and americans fighting any war on foreign soil. Government since has failed their brilliance in every way.

  22. Claire said,

    June 18, 2008 @ 2:33 pm

    In particular, please note that the meaning of the Second Amendment is a distinct question from what is good policy. It is quite possible to read the Second Amendment as protecting an individual right to possess and carry weapons while believing this to be poor policy, or to read it as protecting only the right of the people to organize militia, while believing that individuals ought to be able to possess and carry weapons.

    This really cuts to the heart of the matter, doesn't it? We're all terribly eager to convince everyone else that the Constitution's meaning lines up with our political agenda. I suspect that this is rooted in the myth we pass along to our children from elementary school onward — that the Constitution is a perfect (and perfectly clear) document that lays out our God-given rights. Instead of a framework designed by some guys who were ultimately only statesmen doing the best that they could according to their ideals.

  23. GunShowOnTheNet said,

    June 18, 2008 @ 2:34 pm

    All one has to do is consider the preamble to the Bill of Rights itself:
    http://gunshowonthenet.com/BillOfRights.htm

    "The Conventions of a number of the States having, at the time of adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further DECLARATORY and RESTRICTIVE clauses should be added, and as extending the ground of public confidence in the Government will best insure the beneficent ends of its institution;

    "Resolved, by the Senate and House of Representatives of the United States of America, in Congress assembled, two-thirds of both Houses concurring, that the following articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States; all or any of which articles, when ratified by three-fourths of the said Legislatures, to be valid to all intents and purposes as part of the said Constitution, namely:

    …Amendment II

    DECLARATORY; (Common Defense)
    http://gunshowonthenet.com/2ALEGAL/Precedent/SenateJournal09091789.html

    "A well regulated militia, being necessary to the security of a free state,"

    RESTRICTIVE; (Self-Defense/Preservation, The First Law of Nature).
    http://gunshowonthenet.com/AfterTheFact/RightofDefense.html
    http://gunshowonthenet.com/2ALEGAL/SelfPreservation.html
    http://gunshowonthenet.com/2ALaw/LawsofNature.html

    "the right of the people to keep and bear arms, shall not be infringed."

  24. GunShowOnTheNet said,

    June 18, 2008 @ 2:37 pm

    Consider the PRE-EXISTENT NATURAL RIGHT of the British-American 'subject' BEFORE the Constitution, as explained by a very knowledgeable and well known authority;

    "The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defense, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute I W. & M. st.2. c.2. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression."

    – William Blackstone, 1 Commentaries on the Laws of England 136, 1765–1769.
    http://gunshowonthenet.com/2ALEGAL/CommentariesBlackstone.html

    Then, let us give our attention to how the new American Citizen's Right was dramatically improved AFTER the Constitution;

    "The right of the people to keep and bear arms shall not be infringed, and this without any qualification as to their condition or degree, as is the case in the British government…."

    "….This may be considered as the true palladium of liberty….The right of self-defense is the first law of nature; in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Whenever standing armies are kept up, and the right of the people to keep and bear arms is, under any color or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction."

    "…In America we may reasonably hope that the people will never cease to regard the right of keeping and bearing arms as the surest pledge of their liberty…"

    – St. George Tucker, U.S. District Court Judge, Blackstone's Commentaries, (1803).
    http://gunshowonthenet.com/BOOKS/BlackCommTucker/CommTuckerV1Index.html

  25. GunShowOnTheNet said,

    June 18, 2008 @ 2:39 pm

    Consider the preamble to the Bill of Rights itself:
    http://gunshowonthenet.com/BillOfRights.htm

    "The Conventions of a number of the States having, at the time of adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further DECLARATORY and RESTRICTIVE clauses should be added, and as extending the ground of public confidence in the Government will best insure the beneficent ends of its institution;

    "Resolved, by the Senate and House of Representatives of the United States of America, in Congress assembled, two-thirds of both Houses concurring, that the following articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States; all or any of which articles, when ratified by three-fourths of the said Legislatures, to be valid to all intents and purposes as part of the said Constitution, namely:

    …Amendment II

    DECLARATORY; (Common Defense)
    http://gunshowonthenet.com/2ALEGAL/Precedent/SenateJournal09091789.html

    "A well regulated militia, being necessary to the security of a free state,"

    RESTRICTIVE; (Self-Defense/Preservation, The First Law of Nature).
    http://gunshowonthenet.com/AfterTheFact/RightofDefense.html
    http://gunshowonthenet.com/2ALEGAL/SelfPreservation.html
    http://gunshowonthenet.com/2ALaw/LawsofNature.html

    "the right of the people to keep and bear arms, shall not be infringed."

  26. Ray Girvan said,

    June 18, 2008 @ 4:26 pm

    > a framework designed by some guys who were ultimately only statesmen doing the best that they could according to their ideals

    Agreed – and with Kate. The cultural situation was very different – a small new nation where everyone needed to be on call against the reasonable risk of being overthrown from the outside or being taken over by internal factions with a different agenda, as well as having a sufficiently untamed environment where self-defence was an important day-to-day consideration. That hardly applies now. Britain every so often has a cull of obsolete laws, and obsolete features of constitutions written 200+ years ago should be viewed in the same light.

  27. you tacky thing » Clear as mud said,

    June 18, 2008 @ 4:32 pm

    [...] Log has a really interesting post up about the second amendment. What caught my eye, though, was the note the author appended to the [...]

  28. Sili said,

    June 18, 2008 @ 4:55 pm

    It seems highly unlikely that any politician would ever dare suggest repealing the 2nd Amendment, however reasonable that would be (herbm claims no guncontrol works, but that doesn't jive with the low low rate of guncrime this side of the pond).

    As an uninformed layman, I think that the intention of the law might have been the public interpretation – and the post argues well that that is not the case – but the letter of the law does indeed fit the private right.

    Brett Dunbar's snide comment is interesting though. Does the suspension of the 4th Amndt. set a precedent for a similar suspension of the 2nd? Methinks that when this case is lost by D.C. it will be a lot easier to launch a campaign for the prosecution of treason for the breaking the 4th.

    Sorry – that was probably too politically charged.

  29. David Schwartz said,

    June 18, 2008 @ 5:21 pm

    "The inhabitants of the villages, who shall take arms against the French, shall be shot, and their houses burnt, as shall likewise all who bear arms without permission from the French generals."

    This one seems ambiguous to me. Clearly the French generals don't give people permission to take arms against them. But they could be specifically prohibiting the formation of armed military units without permission.

    That is, without the second part, this could be read to permit organized, armed military units, so long as they don't fight against the French. It is not completely clear to me that this prohibits an individual from carrying a gun while hunting.

    Perhaps the French gave permissions for armed, organized units to form from civilians so long as they support the French. Though that seems unlikely, it would be equally odd to forbid such a thing.

  30. Nick Nola said,

    June 18, 2008 @ 7:12 pm

    Then there is relevance question. The reason why judges and people are haggling over this question is because it is pretty hard to change US constitution. But judges determine the interpretation and they are not binded by historical accuracy. This is how constitution is gradually changed to modern age.

  31. XaiaX said,

    June 18, 2008 @ 7:26 pm

    Did Machiavelli happen to write about this tactic? It would seem to be worthy of his attention.

    Niccolo actually suggested that the occupying Prince arm the populace, as a means of pacification. (The idea being that will trust you more that way, and see you as a despot if you attempt to disarm them.)

    Or did you mean the tactic of "getting people to quibble over the wording of the laws instead of doing something about them"? I'm pretty sure that's something a largely law loving authoritarian populace does to itself. We have a long history of "this book dictates the truth, so the only thing we have to argue about is what the book says, not whether what the book says is right".

    That applies to all sorts of popular books that proscribe behavior. ;)

  32. Ran Ari-Gur said,

    June 18, 2008 @ 8:17 pm

    What I don't get is, the opening clause makes clear that the Framers did intend for militias to be well regulated; but what regulation did they have in mind that wouldn't infringe on the right to keep and bear arms?

  33. bulbul said,

    June 18, 2008 @ 8:42 pm

    the tactic of "getting people to quibble over the wording of the laws instead of doing something about them"
    and
    splitting linguistic hairs
    Yes, that is exactly what the Supreme Court does, pointless quibbling and splitting of hairs without any relevance to your life whatsoever. I assume you have the same contempt for physicists, with their fancy degrees and expensive machines used to study tiny particles which no one can see and which are of no use to anyone.

    And as for the matter at hand, the Wikipedia article on the Second Amendment quotes the case Amyette v. State brought before the Tennessee Supreme Court in 1840, where the court ruled that the term "bear arms" "has a military sense, and no other" and further stated "A man in the pursuit of deer, elk, and buffaloes might carry his rifle every day for forty years, and yet it would never be said of him that he had borne arms; much less could it be said that a private citizen bears arms because he has a dirk or pistol concealed under his clothes, or a spear in a cane." If it is indeed so, maybe a study of that decision would reveal more about the period use of the term "to bear arms".
    Also, does anyone else find the way the Bill of Rights uses the term "the people" a bit strange? Rights are guaranteed to a "person" in the Fifth and "the accused" in the Sixth, but the rest is just "the people". INAL, but one could argue that this would indicate a collective right (as in the First Amendment "the right of the people peaceably to assemble"), where the terms "person" and "accused" and the passive voice (7h and 8th) or formulations like "the Congress shall". Of course, the Sixth Amendment blows a huge hole through this theory…

  34. bulbul said,

    June 18, 2008 @ 8:44 pm

    Of course, the Sixth Amendment blows a huge hole through this theory…
    Um, sorry, I meant the Fourth Amendment – "The right of the people to be secure in their persons, houses, papers, and effects…". It's way past my bedtime.

  35. bulbul said,

    June 18, 2008 @ 8:47 pm

    Ran,

    but what regulation did they have in mind that wouldn't infringe on the right to keep and bear arms?
    If memory serves well, it was Justice Antonin "Torture is not a punishment" Scalia who said during the oral arguments in this very case that to him, "well regulated" means "well trained".

  36. Tom Roland said,

    June 18, 2008 @ 10:00 pm

    Kate, no one in the Supreme Court case is–or at least should be–talking about policy. The question is whether an individual has a constitutional right to own and/or carry a weapon on his person. I am one hundred percent in favor of a complete ban on any ownership or use of any firearm of any kind or description–or, I should say, I would be in favor of such a policy EXCEPT THAT under our system of laws–which I generally think is a good thing to have–that policy is impossible to legislate unless and until (1) the Supremes say that the constitution allows it or (2) the constitution is amended to allow it.

  37. Tom Roland said,

    June 18, 2008 @ 10:08 pm

    Ray Girvan–again, unless you think that judges should have the right to interpret a constitution to fit their private desires, you are simply confused. If you ask me to sign a petition to amend the constitution to ban all ownership and use by individuals of all firearms, I will sign and support your petition because I agree with you that the constitution is outdated in that–and in many other–respects. But please, IT IS A CONSTITUTION!! Unless and until it is amended, it means what it means, as interpreted by presumably "unbiased" judges. I know, I know, how can one speak so righteously about such nuts as Thomas and Scalia, for instance. Well, the alternatives are worse.

  38. The Volokh Conspiracy said,

    June 18, 2008 @ 10:30 pm

    "What Did It Mean To 'Bear Arms' in 1791?"…

    Linguist Bill Poser, blogging at Language Log (one of my favorite blogs), comments on the …

  39. Brett Dunbar said,

    June 18, 2008 @ 10:45 pm

    I meant the third, not the fourth, bit of a a braino there. The second can be interpreted as having such a narrow area of operation that it is effectively pointless, much like the third is.

  40. Mabon said,

    June 18, 2008 @ 10:55 pm

    Not yet mentioned is that the 2d Amendment was the product of a political compromise; it doesn't actually represent a single point of view. There were factions, just as today: those who fought to have the right to carry arms enshrined in the Constitution, as well as those who believed that it ought not be included.

    The fact that the 2d Amendment — alone among the ten amendments of the Bill of Rights — has a prefatory explanatory clause, seems to me to be a clear indication that part of the consensus reached was that some sort of justifying language was needed, in order to prevent later interpreters of the document from wondering why the amendment was included.

    Unfortunately, it didn't work out that way; all it did was set the 2d Amendment apart from the others:

    Right to Freedom of Speech…. check!
    Freedom of Religion…. check!
    Freedom of the Press…. check!
    Right to Bear Arms……………..
    Hmmmm……………………..

  41. Mike Hansberry said,

    June 18, 2008 @ 11:06 pm

    BulBul :

    Perhaps we should look at who the court in Aymette said had a right to keep and bear arms.

    Also it makes good sense to look at how the Aymette court interpreted the right to "keep" arms as that is what the Supreme Court will decide in Heller.

    We ought to look at how other courts of that era interpreted the right to bear arms. Bliss and Nunn are quite a bit more expansive than Aymette.

  42. Ray Girvan said,

    June 18, 2008 @ 11:53 pm

    you are simply confused

    Where? I didn't say anywhere that I thought the judges in D.C. vs Heller should view the Constitution as more like guidelines, as you appear to have read me to mean. I just made a general comment on the problem of having to try to interpret anachronistic portions of the Constitution to fit a very much changed world.

  43. Brooks Lyman said,

    June 19, 2008 @ 12:13 am

    Kate – I seem to recall reading somewhere that Machiavelli favored allowing the people to be armed; sorry, don't recall the exact reference.

  44. BC said,

    June 19, 2008 @ 1:56 am

    Seems to me that asserting the Second Amendment to be "anachronistic" or "obsolete" is assuming facts not in evidence.

  45. Dell Adams said,

    June 19, 2008 @ 5:09 am

    Noscitur a sociis: it should be known by the "keep" it accompanies.

  46. Brett Bellmore said,

    June 19, 2008 @ 6:57 am

    "Trying to explain the language as it was meant in those days by what it can scarcely mean now, is a tired old trick that demeans both sides."

    This remark of Janice's represents a common enough view among those who want Heller overturned, that it's worth analyzing.

    "What it can scarcely mean now"… WHY can it scarcely mean that now? Clearly a rather substantial fraction of the population, sufficient that gun control is politically radioactive through a good deal of the country, are perfectly comfortable with it meaning that now. In fact, determined that it mean it now.

    The claim here really boils down to an assertion that constitutional provisions are not allowed to retain their original meanings if *Janice* finds them objectionable.

    You see, that's the problem with claims that constitutional meaning has to change in response to public opinion: Public opinion is never unanimous. 'Changing' constitutional meanings in response to public opinion privileges *part* of public opinion, and not even necessarily the larger part, over the rest of it.

    At least the amendment process requires a formal procedure to establish that public opinion is largely in favor of the change. 'Amendment' by judicial fiat merely requires a majority of the justices to favor the change, which may very well be in the teeth of public opinion.

  47. bulbul said,

    June 19, 2008 @ 7:36 am

    Mike,

    right you are. Here are the facts of Aymette vs. The State: William Aymette was charged with and convicted of wearing a concealed bowie knife which was illegal under Tennessee law. Aymette challenged the constitutionality of the act in question citing section 26th of the first article of the bill of rights of the Tennessee constitution of 1835 which guarantees "the free white men of this State" "a right to keep and to bear arms for their common defence".
    The Tennessee Supreme Court held that there was an important distinction between keeping arms and bearing arms and that while the citizens had the unqualified right to keep arms, their right to bear them was not unqualified: "The citizens may bear them for the common defence; but it does not follow, that they may be borne by an individual, merely to terrify the people, or for purposes of private assassination." The justices were of the opinion that to be of any use in defence of the state, the arms in question must be carried openly. To prohibit citizens of Tennessee from carrying their weapons openly would mean to prohibit them to bear arms altogether and that would be unconstitutional. But that is not what happened. The act under review merely regulated the manner in which weapons could be carried and there is nothing wrong with that – a concealed Arkansas tooth-pick does not contribute to the defence of the state.

  48. Ray Girvan said,

    June 19, 2008 @ 8:28 am

    Seems to me that asserting the Second Amendment to be "anachronistic" or "obsolete" is assuming facts not in evidence.
    Oh, come on, look at the origin: a pragmatic compromise between two long-defunct political entities in the context of a very new nation under major risk of destabilisation by factional breakup and armed rebellion. Does that describe the modern USA?

  49. Stacy said,

    June 19, 2008 @ 10:29 am

    Interesting historical discussion, but it's pretty well established that a militia in the 17th century was composed of all able-bodied male citizens, who would "muster" at the nearest town on some regular basis to stand and be counted.

    There's some question (at least in my mind) as to whether their infantry weapons were privately owned and kept at home, or publicly owned and kept in an arsenal. Many Revolutionary and Confederate soldiers unquestionably brought their personal long guns to war, but then there are also the stories of British troops marching to capture this or that colonial weapons cache. And wartime governments do whatever they can to supply their troops, so that after years of fighting most soldiers are probably carrying weapons acquired via the public purse. That said, there is also unquestionably a long tradition in the west of militiamen keeping their military gear at home, making the militiaman more likely to be familiar with his weapons and the weapons more likely to be maintained in good condition.

    So, even if we decide that a 17th-century militiaman's arms were kept in a government arsenal, there's an excellent practical argument for a 21st-century militiaman's individual outfit to be kept in his home.

  50. Fûz said,

    June 19, 2008 @ 12:41 pm

    Zubon wrote, "I would also suggest that 'all the time' is not a relevant consideration for interpreting the phrase. "

    Soldiers do not carry weapons around with them 'all the time' either. In garrison, only a small minority would. When deployed overseas, only those expected to come into contact with the enemy, or those protecting a base or specific assets, would be armed.

    If you are familiar with US military controls over the issuing, storing, and accounting for weapons and ammunition, you'll agree that arming soldiers is much rarer than imagined by the linguists under study in this post.

    Private citizens have more frequent contact with their arms than Soldiers with theirs, and I assert that the Framers intended that frequent contact when the term "well-regulated" appeared in the text of 2A.

    "this or that colonial weapons cache": of that I'd like to know more. Might have been collectively-owned or crew-served weapons such as cannon, or stockpiles of ammunition above what private owners would keep in their homes. Could also have been community-owned individual weapons in reserve against loss or malfunction, or issue to those who could not afford their own—think the Committee of Safety Musket, designed and commissioned by the government.

    Ray Girvan wrote: "under major risk of destabilisation by factional breakup and armed rebellion. Does that describe the modern USA?" You don't really want my answer, do you?

  51. Gordon DeSpain said,

    June 19, 2008 @ 1:01 pm

    For those who would argue that "it's a changed world," I don't think you understand the problem. Look at DC, Chicago, Detroit, Cleveland, and LA, all fighting desperately to control Criminals they refuse to keep in Jail, while complaining that they need stronger Gun Laws to control Weapons they've already banned, and, blaming a surge in Handgun Violence on Law Abiding Citizens that are not allowed prohibited weapons.

    The Second Amendment need only be separated into its component parts to understand what it means:

    There is a Primary Clause, "…the Right of the people to keep and bear arms."

    A Secondary Clause, "A well regulated militia, being necessary to the security of a free state…"

    And, a Command Clause or Phrase, "…shall not be infringed."

    To simplify matters, lets separate that into two sentences, as if it contained two Primary Clauses, with the Command Phrase attached but without the interceding Commas:

    1. A well regulated militia being necessary to the security of a free state shall not be infringed.

    2. The Right of the people to keep and bear arms shall not be infringed."

    Which one would best be described as a "Stand-alone Sentence?"

    The Founding Fathers had an aversion to Standing Armies, and, Select Militias. To understand where we are today, go look at Mayor Fenty's Press Conference following the Oral Arguments in Heller. Listen to Chief Cathy Lanier declaring that the 2nd Amendment was written to ensure a States Right to hire and deploy a professional Select Militia, but never intended to allow individual citizens to bear arms…that they might feel inclined to turn against a Rogue Government, such as DC.

  52. BC said,

    June 19, 2008 @ 2:01 pm

    Oh, come on, look at the origin: a pragmatic compromise between two long-defunct political entities in the context of a very new nation under major risk of destabilisation by factional breakup and armed rebellion. Does that describe the modern USA?

    Does it matter? The specific context in which the Second Amendment was written aside, are the concerns underlying its adoption — defense of self and community against armed aggression, including but not limited to an overweening central government — any less salient today?

    You're essentially arguing the, "It can't happen here," canard, with a, "Maybe it once could have, but not anymore," gloss. Unless you have some fairly unique precognitive abilities, this is, again, to assume facts not in evidence. Everybody thinks that it can't happen here until it does.

  53. TruePath said,

    June 19, 2008 @ 2:25 pm

    Likely the regulation the framers had in mind was laws requiring people to turn out for training, rules about who can call out the militia and when, appropriate leadership structure and so forth. In short whatever provisions are necessary to create a disciplined effective fighting force.

    The problem with the collective rights theory is that it simply doesn't make sense given the understanding of the constitution at the time of writing. Even supposings (unreasonably in my view) that the writers of the 2nd ammendment merely wanted to protect the right of states to raise militia this would dictate exactly the same restrictions on the federal government, i.e., the federal government cannot restrict the rights of citizens to own arms as that would impinge the state's ability to raise a militia.

    Remember at the time the bill of rights was enacted it didn't apply to the states. Thus there would be no reason to provide exceptions to the prohibition on arms control since that would be the business of states who were not bound by the 2nd amendment. In other words even if you take the second amendment to be a state's rights issue it STILL is going to prohibit the federal government from restricting weapon's ownership. The real question is what was the public understanding of the 2nd amendment at the time it was incorporated by the 14th amendment to apply against the states. Of course the collectivist camp doesn't want to focus on that too much since there is a great deal of historical evidence from that period showing it was understood individually.
    ———————-

    This having been said I don't think the 'well regulated militia' clause is irrelevant to this case. As other commentators have suggested it's reasonable to take this clause to give the scope of the arms protected: those arms needed by an infantry member. This gives the interesting result that while assault rifles should recieve the full protection of the 2nd ammendment handguns and other personal defense weapons may not. I think there is a credible case to be made that the DC ban is perfectly constitutional as appled to handguns.

    Not only would this be good constitutional interpratation it would likely be better public policy. We ban assault weapons because we base our gun laws on irrational fears not because we look at statistics quantifying additional deaths per unit utility. I don't know if gun control will work at all in the states (it may in england but they don't have the tremendous reservoir of weapons available in the country that we do) but if anything is going to make a difference I suspect it would be handgun controls not assault weapons bans.

  54. Nathan Myers said,

    June 19, 2008 @ 3:19 pm

    The last time I tried to regulate a militia, they spoke to me very rudely. To do it well, it seems you need to bear some arms.

  55. Rich Rostrom said,

    June 19, 2008 @ 7:30 pm

    Kate: The discussion of policy is and should be separate from the discussion what the meaning of existing laws is.

    Dennis Brennan: Militia units were formed by state governments. And yes, there was a question of exclusion from the militia as a means of control. Military service was a mark of citizenship. During the Civil War, blacks agitated for the right to serve in the Union Army, and the "free colored" residents of Louisiana tried to form a militia regiment in Confederate service (they were rejected). Also, obviously, if a faction in control of the government allowed only its followers to serve, then the militia could easily become a tool of partisan control. However, I don't think the Second Amendment addressed any of these issues.

    dr pepper: At the time of the Founding, private citizens could and did own weapons up to and including naval artillery. Merchant ships venturing into pirate-infested waters often carried such guns, and in time of war, citizens fitted out complete warships for commerce raiding (privateer). On land, some frontier settlements were private forts, and had cannon for defense. The famous Kentucky abolitionist Cassius Clay reportedly had a cannon on the roof of his house for dispersing lynch mobs.

  56. fred said,

    June 19, 2008 @ 10:28 pm

    "the right of the people to keep and bear arms, shall not be infringed"

    seems that everyone on this thread agrees that
    "the right of the people" = "the right of anybody"

    but "the people", what's THAT intended to mean here?
    "anybody"?
    or "the great mass of people in general" ("citizens, but not perps"?)
    or "pretty much everybody in the former 13 colonies"
    or "just the guys who signed this thing"
    or "men who agreed with this thing"
    or "those of us who aren't considered completely nuts by the rest, including women"
    or "more or less, everybody who's still here, except those still loyal to George III"

    I presume that the framers of the constitution were familiar with the idea that if someone is suicidal, it's generally considered rather irresponsible NOT to infringe on his/her right to bear arms

    maybe they meant "pass no law that restricts gun ownership to those who are members of the government (or the military)"

    or "you can't restrict the right to bear arms in general" (but maybe case by case)
    so that: some individuals may be judged to be incompetent with regard to bearing arms, without infringing on the more general "right of the people"?

    e.g.
    "felons"?
    "those declared non compos mentis"?
    "slaves"?
    "people most of us don't much like"?

    Guessing that the meaning of "the people" might have been in flux in the years immediately before/after (take your pick) the American revolution/ French revolution/ publication of Common Sense, etc. (I'm not a prescriptivist, so skip the dict. quotes)

    and yes, I'm hoping that I might learn something quicker here than searching for/through the quite-likely huge body of literature on "the people" in the US Constitution

  57. TGGP said,

    June 20, 2008 @ 3:44 am

    The 2nd Amendment provides an interesting example of original intent vs meaning, because the intent is actually specified. They were thinking of militia, which were common at the time and sparked the war that resulted in independence. People were wary of standing armies back then, though they did create and permit the regular Continental Army during the war. I personally would favor scrapping our standing army that mostly seems to join in fights around the world that have little to do with us and going back to the old militia system. However, if they intended to give us a "right" to militia, that has certainly been thoroughly violated so that groups like the Michigan or Montana militia are considered outlaws or near-terrorists. They neglected to actually secure that right in the Constitution (and I lean toward the ink-blot interpretation of the Ninth Amendment unless you can establish that a pre-existing right was recognized, which the British certainly did not with regard to militias keeping arms) and so we do not have it.

  58. Lester Piggot said,

    June 20, 2008 @ 4:09 pm

    I'm sorry to sound smug about this however, in many countries we can't quite believe that the USA STILL cannot decide if it's a good idea for people to have guns. It's quite obvious to anyone in their right mind that it is a terrible idea. Just get rid of them.

    If what's stopping you is a sort of Talmudic imponderable about what was REALLY in the minds of some old men a very long time ago, then maybe that is a hint that the US Constitution isn't a perfect document and that times change. I know that's almost blasphemy to some of you, but in any event it's a good example of why the US might want to show more restraint when it comes to forcing the US's idea of "democracy" on others.

  59. dr pepper said,

    June 21, 2008 @ 3:00 pm

    anti-fascist said,

    > Bombs and cannon are considered "munitions" by definition by the ATF,
    > and are held to a higher level than "firearms". This is how they make it
    > illegal to own a grenade today.

    By Jove, i think anti-fascist has found the answer! Let all weapons with more killing power than a brown bess or a kentucky rifle be recognized as "munitions", and the rest falls into place.

  60. Paul A. Brennan said,

    June 21, 2008 @ 11:46 pm

    It seems to me the the "right to bear arms" argument misses the most important issue.
    Assume that the Constitution authors meant that individuals had the right to bear arms, in addition to the military or militia. What did they mean by "arms"?
    Did they mean the kind of "arms" intimated by the term "arms race"?
    By the term "nuclear arms"? By the term "AK47"; by "assault weapons"?
    Why not check out the meaning of "arms", as used in those days, and see if a reasonable person could argue that the authors meant the "arms" we have in use today? No brainer.
    The Constitution framers may have meant to allow each citizen the right to bear "arms" but they could not possibly have meant the right to bear the "arms" of today.
    Logic should provide the answer on this one.
    Paul A. Brennan, Esq.

  61. Dave said,

    June 22, 2008 @ 3:34 pm

    A few observations.

    Before 9-11 the paradigm was that it was better to submit to hijackers as it would be OK and no one would be hurt. This attitude allowed a half dozen poorly armed hijackers on three aircraft to subdue a large number of people and kill even more. Attempted disarmament of the majority did not prevent the catastrophe. The fourth aircraft in which the population responded prevented further destruction at great personal sacrifice. I suppose this was as best as could be a well organized militia.

    Would a very strict interpretation of the amendment protect well organized militias such as racially or politically motivated militias on any end of the political spectrum but deny the right of an individual to defend him(her)self from attack from another individual who happened not to respect the constitutional perspectives of the modern era.

    Would an equally strict interpretation imply that the Founding Fathers were suspicious of a strong central government (having not provided for a standing national army {obviously not an option in the modern world} and wanted to provide a safety valve against an oppessive central government such as the one they had recently revolted against.

    Given that an unarmed population cannot defend itself is any part of the government: local, state, or federal willing to verifiably defend our individual safety or did the Founding Fathers realize this was unrealistic (in their times or ours) and want to guarantee the right to defend rights.

    The Bill of Rights is mainly about what are called negative rights which are about things that can't be done to the individual, not what the individual is owed. It speaks of the limitations of the government on the individual. The Constitution sought to protect the individual from excessive governmental control which is a concept applicable and abused in our times. In terms of the amendment in question given the lack of a standing army it is implicit that I may be called upon to defend myself. Well and good, the Constitution recognizes my right to do this.

    I believe the framers of the Constitution believed in the capacity of the individual to defend themselves and their country and wanted to codify this right. I agree with them and think we need to rethink our assumptions about individual and governmental rights and responsibilities in the age of terrorism.

    For those who would equate this with the oppression of the 50's associated with McCarthyism I would state that I speak for individual and not governmental rights. The first were abused and the last were enhanced in that time. I speak in support of the individual. I think a nation of strong and free thinking folks will come together against adversity and overcome it.

  62. David Marjanović said,

    June 22, 2008 @ 6:17 pm

    I always get the same culture shock about this. The way I see it, the very fact that it is not immediately self-evident what the 2nd Amendment means proves that the 2nd Amendment must be amended. Agree on something that you want to have enshrined in the Constitution, write that down, and get it through 2/3 of Congress and 3/4 of the state legislatures or whatever the rule is. Make the Talmudic imponderables irrelevant.

    Attempts at Biblical literalism are ridiculous enough, but to treat a constitution this way, even though it contains the rules for its own amendment, is… does not compute.

  63. Mike Hansberry said,

    June 22, 2008 @ 7:35 pm

    David M.

    When the facts (such as the early court cases and quotes of the founders) are on your side, argue the facts. Otherwise muddy the water.

    That some pretend to be confused is not proof of anything.
    That they have no evidence ought to tell you something. No one from the DC side has produced any evidence that the right to bear arms was limited to those persons actually enrolled in the well regulated militia. However there is ample evidence to the contrary.

    Please note that only one side of the argument claims to be confused by the text. That same side engages in evidence barring, sleight of hand, and just about every other rhetorical device to avoid the plain meaning of the text.

  64. Bill said,

    June 22, 2008 @ 10:56 pm

    Hope this hasn't been discussed as I haven't read all the comments, but the arms of the militia back then, at least with regards to rifles and pistols, who issued the firearms? Militias or was it assumed that you would bring your own? Also was it an oddity for someone back then to carry a weapon on their person in a public place?

    Curious as to the attitude of guns back then.

  65. Nathan Myers said,

    June 23, 2008 @ 3:40 am

    I've seen only one interpretation that takes every word in the sentence as meaning something: citizens need to be armed sufficiently to regulate the militias. Of course the militias are so far beyond regulation by citizens, now, that the whole thing is pointless. We might be counted lucky they still respond to civilian command.

  66. ajay said,

    June 25, 2008 @ 11:58 am

    Of the 20 meanings for the transitive verb 'bear' in Webster's An American Dictionary of the English Language (1828), the only one that contains the word 'arms' is the third:
    "To wear; to bear as a mark of authority or distinction; as, to bear a sword, a badge, a name; to bear arms in a coat."

    Well, it's obvious, then. The amendment is nothing to do with weapons; it's about heraldry. In Britain at the time, being armigerous – having a family coat of arms – was a sign of gentility and good ancestry, a privilege awarded and controlled by the Royal College of Heralds. In the new egalitarian United States, all that would be swept away, and anyone who wanted would be able to draw up a family coat of arms for themselves.

    The reference to the militia? Well, county militias in Britain at the time were under the command of the Lord Lieutenant of the County. But if anyone in the US could have a coat of arms, anyone could be a gentleman, and thus be eligible to command militia.

  67. The English Teacher Blog » Blog Archive » “The right to bear arms” said,

    June 26, 2008 @ 3:12 am

    [...] Poser approaches the Second Amendment in his blog, Language and the Law from a linguistic perspective. He focuses on whether the phrase "to bear arms" was [...]

  68. Mark SFCA said,

    June 26, 2008 @ 5:56 pm

    Although there is ample evidence in the historical writings of the framers of the U.S. Constitution to indicate that they specifically meant for the people to possess arms sufficiently strong enough to keep a potential tyrant and/or overzealous military in check, this one from Tench Coxe seems clear enough to illustrate what is meant by "bear arms" as used in our countries document:

    "Whereas civil-rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as military forces, which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms."
    — Tench Coxe, in Remarks on the First Part of the Amendments to the Federal Constitution

    We can argue the merits of such a concept all we want, but unless we ammend the constitution, I don't see how governments or individuals within the US can deny any arms to any citizen legally.

  69. Notes on work in progress « Lexiblography said,

    June 26, 2008 @ 6:16 pm

    [...] of possible general interest at the moment. One is for this blog, and is intended in follow-up to this post (and this follow-up) on Language Log, relating to the history of the meaning of the controversial [...]

  70. Reid A. Book said,

    July 3, 2008 @ 6:34 am

    "A well regulated library, being necessary to the security of a free state, the right of the people to keep and bear literature, shall not be infringed."

    "A well regulated family, being necessary to the security of a free state, the right of the people to keep and bear children, shall not be infringed."

    "A well regulated account, being necessary to the security of a free state, the right of the people to keep and bear printing presses, shall not be infringed."

    "A well regulated agriculture, being necessary to the security of a free state, the right of the people to keep and bear plows, shall not be infringed."

    Linguistic that, you liberal idiots.

    [(myl) I guess it's about time to close the comments on this thread. But before I do, let me point you to "The right to keep and bear adjuncts", 12/17/2007, where the point you seem to have in mind here was discussed at length, with reference to the works of Nelson Lund, and especially his "A Primer on the Constitutional Right to Keep and Bear Arms", (Virginia Institute for Public Policy, 2002), where he uses the example

    A well educated Electorate, being necessary to self-governance in a free State, the right of the people to keep and read Books, shall not be infringed.

    Both Geoff Pullum and I, in separate posts, found Lund's arguments linguistically convincing.

    But this current post -- the one you're commenting on -- is not about the meaning of the adjunct in relation to the main clause, but rather about the meaning in the late 18th century of the phrase "bear arms". That's a separate question, as is who in this discussion is exactly what sort of idiot. ]

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