1. Guns and Grammar: Determining what the Second ... - English

Baron, Language and Law, 1. Guns and grammar, 14to arms used in hunting or for target practice, though some weapons advocates insistthat the Second Amendment covers these as well.Bearing arms Sometimes the justices can’t find the support they’re looking for in dictionaries, andwhen a judicial interpretation of a law clashes with the lexical evidence, they mayreject the authority of the same dictionaries that in other cases they hold up asrepositories of wisdom and reason. In Heller, none of the justices thought that theSecond Amendment protected a citizen’s right to own a tank or a surface-to-airmissile, even though such weapons fit the definition of arms as ‘weapons of war.’But they did argue over the meaning of the phrase bear arms, specifically, whetherthe amendment protects the right to bear arms in connection with military service.The Court’s conservative majority decided that it did not, that it also guaranteed theright to bear arms for hunting and self-defense as well.Dictionaries, however, show that from the 18th century to the present, thephrase bear arms typically appears in military contexts, not ones involvingindividual self-defense, hunting, or sport. As the historian Garry Wills put it, “Onedoes not bear arms against a rabbit.” But Justice Scalia rejected the dictionaryevidence that did not support his understanding of the Second Amendment, writingin his majority opinion, that although bear arms often occurred in military contexts,“the fact that the phrase [bear arms] was commonly used in a particular context doesnot show that it is limited to that context” (Heller, 15). In other words, one canindeed bear arms when hunting rabbit.Bear arms (a direct translation from the Latin arma fero) typically refers to the act ofsoldiering and the use of military weapons. The most pertinent American referenceto bearing arms before the Second Amendment is its use in the Declaration ofIndependence:The present King of Great Britain . . . has constrained our fellowcitizens . . . to bear arms against their country.In his legal dictionary, John Cowell (1701) writes that the meaning of armsand armor extends “to any thing that a Man in his wrath or fury taketh into his hand,or wears for a defence, wherewith to cast at or strike another.” However, while armsmay be anything from Saturday night specials and brass knuckles to broken beerbottles and baseball bats, the idiomatic phrase bear arms has always primarily meant‘to go for a soldier,’ as in this example from a proclamation made by Josiah Martin,the British governor of North Carolina, in 1776:I do hereby . . . promise, and assure, to each and every Person orPersons who shall join His MAJESTY’S Forces and bear Arms againstthe Rebels in this Province . . . a Grant . . . of Land in Proportion totheir Circumstances, Merit and Pretensions.[Martin 1776]