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

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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]
Baron, Language and Law, 1. Guns and grammar, 15Far less commonly, bear arms may refer to individuals carrying weapons, asin this isolated example from 1645: “There shall be a cessation of bearing of armesvnto the meeting howse vpon the Lord’s daye” (Craigie 1938, s.v. arm). In oralarguments in Heller, Justice Scalia referred to a 1716 Parliamentary act fordisarming the Scottish Highlanders to underscore his belief that ‘bear arms’ regularlyrefers to carrying weapons in nonmilitary contexts:[A]s I recall the legislation against Scottish highlanders and against–against Roman Catholics did use the term–forbade them to keep andbear arms, and they weren't just talking about their joining militias;they were talking about whether they could have arms.But what the Highlander statute actually says is[Supreme Court 2008, 17]that . . . it should not be lawful for any Persons . . . to have in . . . theirCustody, use or bear, Broad Sword . . . Side-Pistol. . . or Gun, or anyother warlike Weapons, in the Fields, or in the Way coming or goingto, from or at any Church, Market, Fair, Burials, Huntings, Meetingsor any other occasion whatsoever.This act bans “warlike” weapons from public gatherings, and its goal is todisarm the population in order to end organized rebellion against the crown. Ithampered hunting and self-defense as well, which produced further Scottishantipathy toward England, but that was not its primary intent.The opponents of gun control also make much of the minority view ofPennsylvania antifederalists, who wanted a Bill of Rights attached to theConstitution, and who tried unsuccessfully to extend bear arms in that Bill of Rightsto include not just protecting the state, but also hunting and self defense:That the people have a right to bear arms for the defense ofthemselves and their own state, or the United States, or for thepurpose of killing game.[Address 1787, 6; emphasis added]But even their proposal recognizes the need to regulate weapons for thepublic good: “No law shall be passed for disarming the people or any of them, unlessfor crimes committed, or real danger of public injury from individuals.”Pennsylvania ratified the federal Constitution without a Bill of Rights, but itdid write one into its own state constitution in 1790: “The right of the citizens to bear
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