Black and white security video frame showing the two shooters in the 20 April 1999 shooting at Columbine High School in Colorado. The pair murdered 12 students and a teacher and wounded 21 others before committing suicide.
27 May 2022
tl;dr The U.S. Supreme Court’s current interpretation of the Second Amendment, expressed in the 2008 case D.C. v. Heller, rests on a misunderstanding of the historical meanings of the idioms to bear arms and to keep arms, and if one is to remain true to an originalist interpretation of the U.S. Constitution, one must conclude that an individual right to possess weapons does not exist.
[The research for what follows was not conducted by me. I am relying on the work of others, notably Dennis Baron, Neal Goldfarb, and Alison LaCroix. Links to their work are in the sources section below. The framing and presentation of the argument here is my own, and any errors or omissions are mine and not theirs.]
The Second Amendment to the Constitution of the United States reads
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.
In 2008, in the case District of Columbia, et al., v. Heller, the U.S. Supreme Court, in an opinion written by Justice Antonin Scalia, interpreted the Second Amendment to include an individual right to possess firearms. Scalia wrote:
The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.
In this opinion, the court also held that the right to possess firearms, and in this case specifically handguns, was not absolute. Prohibitions on concealed weapons were constitutional, according to Scalia, as were restrictions on “M-16 rifles and the like.” But the court did hold that individuals had a relatively unrestricted right to possess handguns in their homes.
In his argument, Scalia separated the two clauses of the amendment and nullified the first. (A violation of his own “whole-text canon” in which a law must be interpreted in its entirety and every provision given effect.) He also referenced an “ancient right of individuals to keep and bear arms,” a purported right for which no evidence exists. (To the contrary, traditionally governments have sharply limited the ability of individuals to possess weapons.) And until this case, the Supreme Court had, in the limited jurisprudence about the Second Amendment that existed, always held that the amendment referred to a state’s power to maintain a militia independent of the federal government, not to an individual’s right to possess weapons.
In the eighteenth and early nineteenth centuries, state militias existed for three purposes: 1) to suppress slave revolts and hunt down escaped enslaved persons; 2) to engage in warfare against Indigenous people and seize new land to the west; and 3) assist in the defense of the nation in case of invasion. The states feared that due to abolitionist sentiments the federal government might disband their militias and that the federal government or, following the former policy of the British colonial government, might limit their expansion westward. Hence the need for an amendment to preserve this power of the states. While the founders were leery of creating a standing federal army, the idea that people themselves might have to resort to military means against tyranny or the need to possess weapons for self-defense did not enter into the discourse. The common-law right to self-defense did not include a right to arm oneself in preparation for an attack and was only operative when retreat was not practicable. These notions of individuals arming themselves to fight some vague, future threat of tyranny or in preparation for a possible attack on their persons are twentieth-century ones.
Scalia’s argument rests on the simple meanings of the verbs to bear and to keep, that is to carry and possess, and in so doing, Scalia separated the bearing and keeping of arms from the concept of militia service. His linguistic reasoning and evidence for doing so was superficial and incorrect, as was pointed out at the time in an amicus brief by linguists, the lead author being linguist Dennis Baron, which was cited in Justice Stephen Breyer’s dissent in the case. Furthermore, in the oral argument, Solicitor-General Paul Clement, arguing that the District of Columbia’s law was unconstitutional, acknowledged that “bear arms in its unmodified form is most naturally understood to have a military context.” And it wasn’t until the latter half of the twentieth century that entries for bear arms in major dictionaries included the sense of simply carrying a weapon. Furthermore, since the 2008 decision, several major new corpora of seventeenth and eighteenth-century English have been published, and these overwhelming confirm the conclusions of the historical linguists and show that Scalia was utterly wrong in his argument and conclusions.
Eighteenth-century usage of these verbs was different than today’s. To bear, for instance, was rarely used with the simple meaning of to carry a physical object on one’s person. And the phrase to bear arms is an idiom, that is a phrase whose meaning cannot be understood by breaking it apart into its component parts. To bear arms had two distinct meanings at the time of the Second Amendment was written. the first was to engage in military service or when combined with against, to fight a war. There are approximately 900 distinct uses of the phrase bear arms in the Corpus of Early Modern English and the Corpus of Founding Era American English (COFEA), and all but a handful are in the context of military service, soldiering, or waging war. A majority of these military uses of bear arms have a collective subject, an army or militia, and do not refer to an individual who is serving. And the non-military uses are mostly ambiguous, with only one, a translation from the French porter armes, being definitively non-military in nature.
This military sense dates to the fourteenth century and can be seen in the Metrical Chronicle of Robert of Gloucester, which dates to c.1325:
At þe feste of seint edward · þe king huld þo anon
At londone a parlement · & heiemen manion
Þere hii lokede þo · þat alle þat armes bere
Aȝen þe king in þe worre · oþer aȝen him were
At norhamtone at lewes · oþer at euesham
Barun erl oþer kniȝt · burgeis oþer freman
Þe burgeis of norhamtone · & of londone þer to
Were alle deserited · & hor eirs al so(At the feast of Saint Edward the king then held at once
In London a parliament & many headmen
There they looked then at all who bore arms
Against the king in that war or who were against him
At Northampton, at Lewes, or at Evesham
Baron, earl, or knight, burgess or freeman
The burgesses of Northampton & of London in that place
Were all dispossessed and their heirs also.)
To bear arms had a second sense of possessing a title of knighthood or nobility (i.e., a familial coat of arms) or rightfully possessing some insignia of office or institution. This sense appears somewhat later, but is in place by the mid fifteenth century as we can see from the records of the parliament at Westminster of 1442:
The said Carrakes aryved and entred the Port of the Isle of Rodes [...] beryng the Armes of the Hospitall of Seint John Jerusalem.
The idiom to keep arms appears much less frequently, but in the seventeenth and eighteenth centuries it carried the same sense of military service. The combined phrase to keep and bear arms appears to be unique to the Constitution but can only be understood as also referring to military service at the time the Second Amendment was written.
When we read to keep and bear arms as referring to military service, the entirety of the amendment, including the prefatory clause, the “whole-text” makes perfect sense. The amendment was not intended to give individuals a right to own or carry weapons, rather it was intended to guarantee the states’ power to form “well-regulated militias,” that is in a modern context police forces and National Guard units. If one is to remain consistent with an originalist interpretation of the Constitution, this is the only correct reading of the text.
Sources:
Baron, Dennis. “Antonin Scalia Was Wrong About the Meaning of ‘Bear Arms.’” Washington Post, 21 May 2018.
———. “Corpus Evidence Illuminates the Meaning of Bear Arms” (pdf). Hastings Constitutional Law Quarterly, 46.3, Spring 2019. 509–22.
“The Bill of Rights: A Transcription.” U.S. National Archives, 19 January 2022.
Blackman, Josh and James C. Phillips. “Corpus Linguistics and the Second Amendment. Harvard Law Review Blog, 7 August 2018.
Corpus of Early Modern English, version 5.2.2-ga3469f9, accessed 26 May 2022. Brigham Young University.
Corpus of Founding Era American English (COFEA), version 5.2.2-ga3469f9, accessed 26 May 2022. Brigham Young University.
Goldfarb, Neal. “A (Mostly Corpus-Based) Linguistic Reexamination of D.C. v. Heller and the Second Amendment,” 27 February 2021, SSRN.
———. “Corpora and the Second Amendment.” LAWnLinguistics, 8 August 2018.
LaCroix, Alison L. “Historical Semantics and the Meaning of the Second Amendment.” The Panorama, 3 August 2018.
Middle English Dictionary, 2019, armes, n. (plural).
Oxford English Dictionary, third edition, March 2016, s.v. arms, n.
Scalia, Antonin (opinion), and Stephen Breyer (dissent). “District of Columbia, et al. v. Heller,” 26 June 2008. United States Reports, vol. 554, Cases Adjudged in the Supreme Court at October Term, 2007. Washington, DC: U.S. Government Printing Office, 2013, 570–723.
Torrez, P. Andrew and Thomas Smith. “OA21: Second Amendment Masterclass,” (podcast). Opening Arguments. Part 1, 3 November 2016 and Part 2, 6 December 2016.
———. “OA161: Gun Control & the Constitution,” (podcast). Opening Arguments, 2 April 2018.
Wright, William Aldis, ed. The Metrical Chronicle of Robert of Gloucester, vol. 2 of 2. London: H.M. Stationary Office by Eyre and Spottiswoode, 1887, lines 11,786–793, 767–68. HathiTrust Digital Archive. London, British Library, Cotton Caligula MS A.11., fol. 165v.
Image credit: Columbine High School security video feed, 1999. Fair use of a single frame from the video feed of a historic event to illustrate the topic under discussion.