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01/06/2023

The Meaning of "Bear Arms" in the Second Amendment
Will Foster

Every person had a right to bear arms; but if the arms borne were for a military purpose, the face of the thing was changed.” - William Wirt, Trial of Aaron Burr for Treason, 1807

In District of Columbia v. Heller, Justice Scalia’s majority opinion concluded that the term “bear arms” as used in the Second Amendment included carrying arms for both military and non-military uses. Subsequent scholarship, much of it relying on the method of corpus linguistics, has challenged that notion, arguing that “bear arms” had an exclusively military meaning in this context. Justice Breyer’s dissent in New York State Rifle & Pistol Assn. v. Bruen cited some of that scholarship in casting doubt on Heller’s reasoning, arguing that Justice Stevens’ Heller dissent was correct to read “bear arms” as having an “idiomatic meaning that, at the time of the founding, commonly referred to military service.”

In my respectful view, however, the historical record continues to strongly support reading “bear arms” in the Second Amendment as meaning simply “carry weapons” -- including for individual, non-military purposes. I base this judgment on literally thousands of pages of 18th and 19th century primary sources I’ve read over the last five years, and it is difficult to summarize all the evidence in a blog post. Here I simply wish to highlight a few points that seem to me particularly salient, drawing on my own research but also the reams of excellent scholarship produced by Stephen Halbrook and others.

As an initial matter, much of the corpus linguistics research repeatedly conflates context and meaning, just as Justice Stevens did in his Heller dissent. It may well be true that “bear arms” was most often used in military contexts, but so what? As Michael Showalter explains at length in a recent article, one meaning (sense) of a word can be used in multiple contexts without changing the meaning of the word. (Josh Blackman and James Phillips made a similar point in a thoughtful piece in 2018, as did William Baude in 2021.)

Even putting aside this methodological problem, the various revisionist readings of “bear arms” are not persuasive. For starters, a purely idiomatic reading of “bear arms” as meaning “perform military service” or “serve in the militia” (as advanced by Neal Goldfarb, among others) is directly contradicted by one of the most significant pieces of evidence about the Second Amendment’s original meaning (though Justice Scalia oddly failed to cite it): Prominent Federalist Tench Coxe’s 1789 published explanation of the Bill of Rights in the Philadelphia Federal Gazette. (James Madison wrote Coxe to offer his thanks for explaining the Bill of Rights to the public; Madison noted that he had already seen the article in the New York papers.) Here, in relevant part, is how Coxe described Madison’s draft of the Second Amendment: “[T]he people are confirmed by the next article in their right to keep and bear their private arms.” This makes it quite clear that “bear arms” did not have an idiomatic meaning in this context. If “bear arms” meant “perform military service,” what on earth could “bear their private arms” have meant? (“Perform their private military service?” Surely not.) 

Still, Coxe’s article cannot by itself rule out another possible interpretation of “bear arms”: A literal, non-idiomatic interpretation that is nevertheless limited to military service. This possible definition does not seem to appear in dictionaries, which limit themselves to fully idiomatic and fully literal meanings. But on this reading, “bear arms” would mean something like “carry weapons during military service.” The response to this argument, however, is that the historical record does not support it, either. 

Here is an example -- which, to my knowledge, I am the first to identify. In 1807, Aaron Burr was on trial for treason, and future U.S. Attorney General William Wirt was arguing on behalf of the prosecution. Attempting to rebut any contention that Burr’s possession of weapons was probative evidence of treason, Burr’s defense lawyer had pointed out that “[r]ifles, shot guns and fowling pieces are used commonly by the people of this country in hunting and for domestic purposes … In the upper country every man has a gun; a majority of the people have guns everywhere, for peaceful purposes.” Wirt, too, agreed that “[e]very person had a right to bear arms.” Nevertheless, he emphasized, “if the arms borne were for a military purpose, the face of the thing was changed.” In context, Wirt’s use of “bear arms” appears clearly unrelated to militia service. What Wirt seems to have meant is simply that although “every person” (including Burr) had a right to “bear arms” for lawful purposes like private self-defense and hunting, this right did not extend to the creation of a private military that rejected the lawful authority of the United States, which the prosecution argued Burr had intended. (Of course, the Second Amendment was designed in part to facilitate exercise of the natural right to revolution, but it did not confer a positive right to violent revolution.) In any event, Wirt’s statement would be incoherent if the “right to bear arms” already was limited to (government-sanctioned) “military purpose[s]” in the first place. If that were so, Wirt’s objection would simply have been that Burr and his followers were not acting as part of an official militia, so they clearly could not be exercising the right to bear arms. Instead, Wirt seems to have recognized that the right to bear arms encompassed a variety of lawful purposes.

This aligns with St. George Tucker’s views on the crime of treason in his 1803 edition of Blackstone’s Commentaries. Tucker noted that in England the presence of weapons could lead to a presumption of treason, but then asked, “But ought that circumstance of itself, to create any such presumption in America, where the right to bear arms is recognized and secured in the constitution itself? In many parts of the United States, a man no more thinks, of going out of his house on any occasion, without his rifle or musket in his hand, than an European fine gentleman without his sword by his side.” To Tucker, it seems, a person could exercise “the right to bear arms” by “going out of his house” with “his rifle or musket in his hand,” for peaceful purposes as part of ordinary life.

The Massachusetts jurist George Thatcher -- who would go on to become a member of the First Congress -- used “bear arms” in an even more clearly non-military sense in a series of newspaper essays in 1786 and 1787, published under the name “Scribble Scrabble.” Thatcher argued that, although the 1780 Massachusetts Constitution only said that “[t]he people have a right to keep and to bear arms for the common defence,” the natural right to keep and bear arms extended to the use of arms for other purposes (and this full natural right remained in force until the legislature passed a law abrogating it). In the course of making this argument, Thatcher twice used the phrase “bear arms” to refer to hunting, a clearly non-military activity. He referred to a “right to keep & bear arms for squibing at pigeons and other game,” and “a right to keep and bear arms for their common defence, to kill game, fowl, &c.” These uses are devastating to the argument that the declaration of the Pennsylvania ratifying convention minority was merely engaged in sloppy drafting when it included “killing game” as one of the purposes of the right to bear arms in 1787. (Further evidence: In 1788, Alexander White -- who would become a member of the Virginia Ratifying Convention and represent his state in the First and Second Congresses -- paraphrased the Pennsylvania minority proposal as “the rights of bearing arms for defence, or for killing game.”)

Incredibly, a prominent historian managed to twist Scribble Scrabble’s writings to serve the militia-only reading of the Second Amendment by failing to recognize that the Massachusetts Constitution explicitly limited the right to bear arms to the “common defence,” a limitation that was explicitly rejected by the First Senate during the drafting of what became the Second Amendment.

To be sure, some defenders of the militia-only reading of the Second Amendment like to point to James Madison’s conscientious objector clause at the end of his Second Amendment draft: “but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.” Anti-individual right scholars tend to claim that this proves “bearing arms” to be synonymous with “rendering military service.” This certainly seems plausible upon a cursory reading of the text, but it turns out to be a highly problematic assumption.

First, it turns out that there are a number of Founding era uses of seemingly literal expressions like “use arms,” “wear arms,” and “carry arms” in similar contexts. For example, the Pennsylvania Militia Act of 1757 exempted from service those “conscientiously scrupling the use of Arms,” a phrase it used interchangeably with “conscientiously scruple the bearing of Arms,” “conscientiously scruple to bear Arms,” and “conscientiously scrupulous of bearing Arms.” Instead, such religious objectors could arrive at militia duty “without Arms.” That statute seems to draw an equivalence between the use of arms and the bearing of arms, which would only make sense if “bearing” meant “wearing/carrying” here (also, it would be rather strange to add “of” between “bearing” and “arms” if “bearing arms” were idiomatic). 

Likewise, Louisiana’s 1812 Constitution provided in Section 22 that “The free white men of this State, shall be armed and disciplined for its defence; but those who belong to religious societies, whose tenets forbid them to carry arms, shall not be compelled so to do, but shall pay an equivalent for personal service.”

And during the 1789 House debates over Madison’s proposed conscientious objector clause, the following was recorded (emphasis added): “Mr. Boudinot thought the provision in the clause, or something similar to it, was necessary … [W]hat justice can there be in compelling them to bear arms, when, according to their religious principles, they would rather die than use them?” Obviously, “them” refers to “arms,” and “bear arms” takes its literal meaning, “carry arms.” It cannot be an idiomatic military meaning. (Goldfarb resists this conclusion, arguing that it is an example of “copredication” in which “bear arms” takes on both an idiomatic and a literal meaning. Although his linguistic expertise certainly far outstrips mine, that construction feels like a serious stretch to me.) 

While it may seem counterintuitive to us today, it seems that 18th and 19th century English-speakers thought it perfectly natural to say that someone was averse to carrying weapons. Perhaps “bear arms” was understood to convey “carry arms in the militiaduring discussions regarding militia duty, even though “bear arms” in another context would convey no such thing. As two scholars have argued: “Only with respect to militia duty did the Quakers require the government to act, namely, to give them special exemptions from militia duty and from militia-specific taxes or fees. Therefore, the fact that the Quakers requested an exemption from the duty to ‘bear arms’ in the militia does not prove that the phrase ‘bear arms’ refers only to militia-related duties.”

 It is also possible that the phrase “bear arms” was understood to refer only to the carrying of military-style weapons (whether or not as part of military service). Though it well postdates the Founding, an 1837 discussion in the Kentucky General Assembly, over “carrying concealed and deadly weapons,” seems to lend support to that interpretation (they are discussing that state’s 1799 Constitution): “‘Those who conscientiously scruple to bear arms shall not be compelled to do so, but shall pay an equivalent for personal services.’ Here the meaning of the phrase is not susceptible of misinterpretation. It is obvious that nothing could have been meant but the arms of a soldier. For what possible services to the State, in wearing or using the stiletto, could the convention have contemplated, as requiring to be compensated by the payment of an equivalent. The convention had reason to fear that persons, conscientiously scrupulous, might be compelled to bear the musket or rifle, in the service of the State, if not protected by the constitution.” The usage of “bear arms” here is restricted in the type of weapons it covers, but it is indisputably literal, not idiomatic. And some 19th century cases suggest that even those who interpreted the right to “bear arms” narrowly, as limited to carrying military-style weapons, did not view the right as limited to those people who served in an organized militia. Thus, as a practical matter, this interpretation, too, supports Heller and Bruen, since a wide variety of common weapons -- from pistols to stun guns -- have some conceivable military use.

 In any event, whatever the precise scope of the sense of “bear arms” used in conscientious objector provisions, there is considerable reason to think that it was a literal (not idiomatic) sense, and that it was broad enough to encompass the carrying of common weapons outside of service in an organized militia (though of course in this context it was referring to militia service). 

Another type of phrase that collective right proponents love to mention is “capable of bearing arms”/“fit to bear arms.” Again, these do seem idiomatic at first blush, but some period usage suggests otherwise (though admittedly the evidence here is thinner). In 1793, for instance, the Irish Parliament passed a militia-related statute that referred to those “qualified to bear fire-arms.” Incidentally, speaking of Irish statutes, one from 1796 uses the phrase “keep and carry arms,” phrasing that is remarkably similar to that found in the Second Amendment and does not seem military-related in context. (I also found a statement from an 1829 British parliamentary debate that “to keep and carry arms was also the right of the subject.”)

While I acknowledge that many scholars have made impressive arguments to the contrary, my view is that the notion that “bear” in the Second Amendment meant something different from “carry” would have been foreign to the Founders. This is not to say that Justice Scalia got everything right in Heller. For example, he at one point stated that “bear arms” refers to “carrying for a particular purpose—confrontation,” a peculiar limitation that arguably could exclude hunting and does not seem well-supported by the historical record. Nevertheless, in the main, Justice Scalia was correct in Heller: The term “bear arms,” as used in the Second Amendment, is not restricted to militia service. And the latest criticism of his opinion provides a cautionary tale about the use of corpus linguistics. Historical context matters, and legal interpretation cannot be reduced to a quantitative science.