The Right to Bear Arms? What History Tells Us.

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Mr. Kozuskanich is Assistant Professor of American History at Nipissing University in North Bay, Ontario.

Few cases in recent memory have been as contentious as the upcoming Second Amendment case, District of Columbia v. Heller. Seldom has history been so central to the arguments made by both sides. Yet, given the centrality of history it is amazing how little attention has been devoted to evaluating the truth of the rival historical claims being made by both Heller and the District of Columbia. As the two sides prepare to argue in court over the constitutionality of D.C.’s ban on handguns, a pressing historical question is at hand: what did the Founders mean when they wrote and ratified the words of the Second Amendment?

Central to the briefs filed by both sides is the meaning of the words “bear arms.” D.C. , writing in defense of the District's gun control laws, tells us that bearing arms connoted military action, while Heller argues that the term “bear arms” did not have “a uniquely military application” (Respondent’s Brief, 11). But if Heller wants to argue that the term “bear arms,” in an amendment that begins with the words “a well-regulated militia,” would have been understood to mean the individual use of guns outside of military duty, then compelling evidence that this actually was the case needs to be provided.

Previous work by legal scholars Michael Dorf and David Yassky has conclusively demonstrated that Congress used the phrase “bear arms” in a military context or to connote military action. Given that the Second Amendment was drafted by Congress this ought to end the discussion, since it would make little sense if this usage were the only time Congress departed from its orthodox meaning. Of course, one might make the dubious argument that the term was used in a less precise way outside of Congress. But, the plain fact of the matter is that the phrase “bear arms” was consistently employed in a military context not only in Congress, but also by the American press. This assertion can be backed up by empirical evidence, not the impressionistic sampling of sources that the respondent and his amici rely on, which draws heavily on sources from outside the Founding era.

William Blackstone tells us that when interpreting law “Words are generally to be understood in their usual and most known signification; not so much regarding the propriety of grammar, as their general and popular use.” (Commentaries, 1:59). What Heller fails to address is exactly how the occasional usage of “bear arms” outside of a clearly military context can be considered common or popular usage. More importantly, the essential historical question that the respondent fails to ask is whether this idiosyncratic individual usage had any actual impact on the drafting of the Second Amendment. Did Congress ever employ “bear arms” in an individual sense? Did an individual construction of “bear arms” have any currency in the colonial and American press? The answer to both of these questions is an emphatic no.

A keyword search of the Library of Congress database (which includes Letters of Delegates to Congress, Journals of the Continental Congress, Elliot’s Debates, and the House and Senate Journals of the 1st Congress) for the term “bear arms” between 1775 and 1791, returns forty-one relevant hits, of which only four do not use the phrase “bear arms” in an explicitly military context. Of course, Heller’s lawyers feel they have absolved themselves from using these sources by implying that if the term “bear arms” was not exclusively military in meaning then there is room for an individual gun rights interpretation. But surely the issue of how this phrase was understood turns precisely on which meanings were orthodox and which were idiosyncratic. In essence, what the respondent is asking us to do is ignore the preponderance of evidence that supports a military reading of “bear arms” in favor of a few sources that do not.

Readex’s Early American Imprints and Early American Newspapers databases together encompass most of the American newspapers, pamphlets, and broadsides published in the crucial period of 1763 to 1791. The comprehensive nature of these archives can give scholars a high degree of certainly that keyword searches accurately reflect common usage since they contain most of the surviving printed material from the colonies and early Republic. The Early American Imprints series contains over 15,500 documents from 1763-1791 alone, 273 of which use the phrase “bear arms.” Disregarding reprints of the Bill of Rights, all quotations of the text of the Second Amendment in congressional debate, foreign news (even though it is usually about military actions overseas), reprints of the Declaration of Independence (even though its condemnation of Britain for forcing Americans to “bear arms against their country” has a clear military meaning), and all repeated or similar articles, 111 hits remain. Only two do not use the phrase in a military context or to connote collective military action.

Using the same method of sorting results from the 132 papers published from 1763-1791, the Early American Newspapers database returns 115 relevant hits, with all but five using a military construction of “bear arms.” The evidence, more fully explained in my forthcoming article, is clear: the dominant understanding of the term “bear arms” at the time the Second Amendment was proposed fits the militia model, not the private rights model. Even the oft quoted Tench Coxe, who believed that the people had a right to “keep and bear their private arms” made his comments on arms-bearing while discussing the need for “military forces which shall be occasionally raised to defend our country.” Indeed, the dominant model of keeping and bearing arms in the Founding era was one in which citizens kept private arms that were regulated for a particular public purpose.

Heller and his amici have created a fictive alternate history that judges and lawyers have used to disregard the orthodox meaning of texts and substitute in its place idiosyncratic usage. Given this tendency, one can appreciate why gun rights advocates are so fond of the Dissent of the Pennsylvania Minority, one of the very few founding texts they cite to support their reading of the Second Amendment. The only problem with using this text is that James Madison did not consult it, and the language of the Second Amendment bears no relation to it. The gun rights approach to history is ahistorical and rests on a flawed methodology whereby the preponderance of evidence that contradicts the so-called Standard Model is ignored in favor of a few minority voices. To reverse more than seventy years of precedent on the basis of such flawed originalist scholarship would be a grave error.

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    More Comments:

    Nathan Kozuskanich - 3/24/2008

    My comments re: the prefatory clause come from Standard Model scholarship in general, and from Heller's brief in specific (which argues that the Second Amendment protects an individual right to keep "ordinary firearms, unrelated to government military service."). Apologies to anyone who thought I was misconstruing any specific argument made here.

    I agree with Mr. Maass’ comments, actually, but with one small quibble. I would argue that people had an assumed and inherent right to have arms, not to bear arms. Militia laws made it clear that men were to bring their arms to muster, and equip themselves for militia duty. But they could not be said to be bearing arms until at muster. For example, Georgia’s militia law stipulated that “every person liable to appear and bear arms at any muster . . . shall constantly keep and bring with him to such muster . . . one gun or musket fit for service.” A separate Georgia law also mandated that white men “be obliged to carry fire-arms” in places of public worship, lest slaves revolt during the church service. The law was very explicit in restricting such carrying of arms to “every white male inhabitant . . . who is or shall be liable to bear arms in the militia.” The distinction between “carry” and “bear” is quite clear and shows that the two terms were not synonymous, as some Individual Rights scholars have claimed. While men could carry arms in church, they could not be said to be bearing them since that was reserved for militia service.

    My point is this: “bear arms” had a military meaning. This makes the prefatory and operative clause focused on the militia, not on a right unrelated to military service.

    John R. Maass - 3/24/2008

    The straw man has arrived!! No one here has jettisoned the prefatory clause, myself included, nor have we argued "that the original right to bear arms had nothing to do with the militia." Where did that come from?

    It is important that the militia should be defined accurately in its 18th c. meaning, and not what folks today think it was, i.e., the equiv. of today's National Guard. (Note: NK did not do so in his article above, but many others do so in print.) Thus, tying gun ownership to military service as it is done today is anachronistic and is drenched in presentism (see Gordon Wood's new book.) People had an assumed and inherent right to bear arms which antedated the Bill of Rights--the 2nd Amend't did not "give" it to them. Militia service in the 18th c. did not mean one signed up, put on a uniform, reported to the muster to draw arms, and then served a tour as if one were a regular. One brought his own gun to the fight/duty, which is why the word "keep" is in the 2nd Amend't. Keep where? At an arsenel? No--at home! Thus in order to participate in the militia either for drills, musters, or call-ups, one would have to have a gun already, not one provided by the state ONLY for militia service.

    Lawrence Brooks Hughes - 3/22/2008

    The phrase "shall not be infringed" tells a lot, also. It reminds us that individuals had enjoyed the right to keep and bear arms in North America since the Plymouth and Johnstown colonies. The Second Amendment did not confer a new right; it codified and extended a long-standing right. And fortunately, the coercive utopians of our own generation will not persuade the Roberts Court to drop the torch, either.

    Nathan Kozuskanich - 3/21/2008

    It also doesn't say "the right of the people to keep and bear arms for their own personal self defense." In fact, the amendment makes little sense were it to read like Heller wants it to: "A well-regulated militia being necessary for the security of a free state, the right of the people to keep and bear arms in their homes for their own personal self-defense, or to use in rebellion against the state, shall not be infringed." We can't just jettison the prefatory clause, or seriously argue that the original right to bear arms had nothing to do with the militia.

    John R. Maass - 3/21/2008

    I also point out the word "keep". It doesn't say the right of the people to store their weapons in state arsenals!

    Lawrence Brooks Hughes - 3/20/2008

    Listening to the oral arguments the other day I was thrilled to hear the Chief Justice point out, not two minutes into the beginning, that the words "of the people" show the author did not mean "the right of the state militia to keep and bear arms shall not be infringed." I've been ranting on that same point for years. Mr. Madison could not have been more unambiguous. Also, his phrase is not only beautiful, but also is one which the slowest, most poorly-educated citizen, who barely reads, can grasp with alacrity.

    b b - 3/17/2008

    b b - 3/17/2008

    Perhaps you should recall just who composes the milia, both then AND today.

    "TITLE 10 > Subtitle A > PART I > CHAPTER 13
    311. Militia: composition and classes
    (a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
    (b) The classes of the militia are—
    (1) the organized militia, which consists of the National Guard and the Naval Militia; and
    (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia."

    Its the LEGAL CITIZENS of this nation that own the country, not today's professional politicians or the self-elected members of elite.

    Eric Smith - 3/17/2008

    You ignore the ancillary purpose of protecting the individual citizen's right to keep and bear . . . "keeping in awe those in power" in the words of the Aymette court whom SCOTUS used to form its reasoning in Miller.

    While the primary object of the 2nd Amendment is to ensure the continuance of the militia concept part of that is ensuring the citizen's right to rescind their consent to be governed, by force if necessary.

    Perhaps a review is in order of Madison in the Federalist 46 where Madison discusses the proportions of population, standing army and militia (those capable of bearing arms). He stated that in 1788, an army of only twenty-five or thirty thousand men could be maintained. "To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, . . ."

    Certainly those citizens "capable of bearing arms" would be bearing their arms without the permission of Congress . . . and that is what the 2nd Amendment protects.

    To argue otherwise IGNORES history Professor.