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

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Baron, Language and Law, 1. Guns and grammar, 16arms for the defence of themselves and the state shall not be questioned.” Similarlanguage is found in Ohio’s 1802 constitution (Davis 1823, 91; 179).Whether the Pennsylvania and Ohio state constitutions, which appeared afterthe Second Amendment was drafted, but before it was adopted, seek to remedy aConstitutional defect by applying the right to bear arms to individuals, or theysimply wish to extend the notion of bearing arms beyond its normal military use,such specification was unusual and did not reflect the ordinary meaning of the phraseto bear arms, as it appears, for example, in the Massachusetts constitution: “Thepeople have a right to keep and to bear arms for the common defence” (Freeman1805, 11). Freeman elaborates further in his discussion of the civil rights andliberties of Massachusetts citizens:The fifth auxiliary right of the subject, that I shall at present mention,is that of having arms for their defence, suitable to their condition anddegree, and such as are allowed by law. Which . . . is indeed a publicallowance, under due restrictions, of the natural right of resistanceand self-preservation, when the sanctions of society and laws arefound insufficient to restrain the violence of oppression.[Freeman 1805, 473]Freeman’s words echo those of the English Bill of Rights and emphasize bothgovernmental control of arms and the value of community self defense, which heexplains in the language of a just revolution, not the language of keeping one’s homeand person safe from criminal attack: It is “a public allowance, under duerestrictions, of the natural right of resistance and self-preservation, when thesanctions of society and laws are found insufficient to restrain the violence ofoppression” (Freeman 1805, 473). This is much the same sentiment that Madisonexpressed in Federalist 46, where he argued that armed citizens would serve as acheck on the federal government.freemanbeararms.jpgWhat’s important for Constitutional interpretation is the fact that the finalversion of the Second Amendment, while it recognizes the connection between armsand a well-regulated militia, makes no mention of bearing arms “for the defense of[individuals] . . . or for the purpose of killing game,” and so the Pennsylvaniaminority opinion was either ignored or rejected by the framers of the federalConstitution, and by the states. Supporters of an individual right to bear arms mayargue that the Constitution implies such a right, or that its silence on the subjectmeans that the existence of a prior natural right to own weapons was so obvious to
Baron, Language and Law, 1. Guns and grammar, 17everyone that there was no need to mention it in the Amendment. But their argumentthat bearing arms in hunting and self-defense is idiomatic English is not supportedby textual evidence from the eighteenth century or earlier.Nineteenth- and twentieth-century dictionaries also confirm that bear armsrefers to military service or the sorts of self defense for which a militia is organized.But after groups like the National Rifle Association flooded the language with prosein which bear arms becomes a synonym for carrying guns, Webster’s Third (1961,s.v. bear) abandoned that traditional military restriction and redefined the phrasemore generally as “to carry or possess arms,” with the Second Amendment cited toillustrate the definition.Above: Oxford English Dictionary entry for ‘bear arms’ Below, Webster’s ThirdNew International Dictionary entry for the phrase.w3beararms.jpgBut despite the insistence of gun rights advocates, the idiom bear arms doesnot stretch comfortably to accommodate this meaning. In oral arguments in Heller,Justice Souter challenged Solicitor General Paul Clement on the meaning of beararms. When Clement interpreted bear arms as ‘to carry them outside the home,’Souter asked, “But wait a minute. You’re not saying that if somebody goes huntingdeer he is bearing arms, or are you?” Clement replied, “I would say that and sowould Madison and so would Jefferson.”But Souter wasn’t convinced. He asked, “In the eighteenth century, someonegoing out to hunt a deer would have thought of themselves as bearing arms? I mean,is that the way they talk?” Clement finally conceded that was not the way theytalked: “Well, I will grant you this, that ‘bear arms’ in its unmodified form is mostnaturally understood to have a military context.”
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