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A Response to Dennis Baron on Heller
David Weisberg

[Ed.: For this guest post we welcome occasional commentator and originalism critic David Weisberg.]
Dennis Baron’s recent op-ed in the Washington Post [Ed.: noted here] argues that Justice Scalia’s opinion for the majority in D.C. v. Heller is incorrect.  I agree.  (I’ve set forth my argument in “A Unique, Stand-alone Second Amendment Implies that both Heller and McDonald Were Wrongly Decided” on SSRN.)  However, I think Prof. Baron has not provided a sound basis for his conclusion.  In particular, he is plainly mistaken with regard to the definition of the transitive verb “bear,” and he also provides an unsatisfactory interpretation of the Second Amendment as a whole.
The Oxford English Dictionary provides the following primary definition of the transitive verb “bear”: “I. To carry; with its transferred and fig. senses.  1. trans. To support the weight of (anything) whilst moving it from one place to another: to carry.”  This definition, according to the OED, has been valid since before 1000 AD, and is first observed in Beowulf.  Webster’s New Collegiate Dictionary (1981 ed.) provides the following primary definition of the verb “bear”: “1 a : to move while holding up and supporting”.
If a corpus linguistics analysis reveals that the phrase “bear arms” was almost always used around the time of the founding in a military context, would that change the primary meaning of the verb “bear,” which meaning has been in use since before 1000 AD?  This question answers itself.  Around the founding era, people in America were interested in questions of liberty, freedom from tyranny, rebellion and revolution.  One would expect, during such times, that they would be talking and writing about “bearing arms” in a military context, rather than in the context of hunting or target-shooting.  But the context does not change the meaning of the words, or, if it does, it was a change in meaning that apparently both the OED and Webster’s missed.
It is clear from both those definitions that it would be perfectly correct, albeit stilted and un-idiomatic, to say that people hunting rabbits bear arms.  They of course are not bearing arms against rabbits in any sense, but that is not the language of the Second Amendment.  Rabbit-hunters carry or support firearms while moving from place to place, so they are indeed bearing arms, unless, that is, former Justice Souter is correct and both the OED and Webster’s are incorrect regarding the meaning of the transitive verb “bear”.  I’m betting against Justice Souter.
On the more general point, Prof. Baron seems to favor the view that the Second Amendment “protect[s] a collective right to gun ownership connected to service in the militia. This is fairly clear from the text, which says: ‘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 my view, the fatal flaw here is the absence of any convincing answer to the question: if that is what the framers meant, why isn’t that what they wrote?  That is, why doesn’t the amendment read: “The right of the people to keep and bear arms, for use in a well-regulated state militia, shall not be infringed.”?  They would have saved themselves five words.
Justice John Paul Stevens’ dissent in Heller takes the position favored by Prof. Baron; in my view, Justice Stevens reached the correct result—that is, the D.C. restrictions on firearms were constitutional—but for the wrong reasons.  The arguments supporting my view are in the paper cited in the first paragraph of this note.