1. Guns and grammar: The language of the Second Amendment

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1 1. Guns and grammar: The language of the Second Amendment A man in the pursuit of deer, elk and buffaloes, might carry his rifle every day, for forty years, and, yet, it would never be said of him, that he had borne arms, much less could it be said, that a private citizen bears arms, because he has a dirk or pistol concealed under his clothes, or a spear in a cane. [Aymette v. State of Tennessee, 1840] The First Amendment didn t clash with the Second in Skokie in 1978, but it did in Charlottesville in The reason: the white supremacists who came to Charlottesville carried guns. They could do so because, in 2008, the Supreme Court defined the meaning of the right to keep and bear arms for the first time, and that definition, which protected an individual s right to carry a gun, led the state of Virginia to permit people to carry guns openly in public. It s not that the Second Amendment hadn t come up before 2008, but when it did, courts understood its to be narrow. In the nineteenth and twentieth centuries, they generally read the amendment to guarantee a collective right to own weapons suitable for military service, not the pistols and knives used in crimes and drunken brawls. Although a few early cases do argue that the Second Amendment protects the right of self defense, before 2008 even the Supreme Court assumed that it was all about military weapons. For example, in 1939 the Court found that a federal ban on sawed-off shotguns was constitutional because the army didn t use them, only gangsters did. It was not until District of Columbia v. Heller, in 2008, that the Supreme Court stated explicitly, This is what the Second Amendment means, and that meaning explicitly rejected the longstanding military association of the right to keep and bear arms. What the Court said in Heller is that the Constitution guarantees the right to own all sorts of weapons for selfdefense, hunting, and sport, or any other lawful purpose. And that made it lawful to carry guns at protest marches in Virginia. Ordinary meaning In this chapter we ll see how the Supreme Court went about interpreting the Second Amendment, how it started with twenty-seven words and wound up with law. It s a long-standing legal convention to say that, when the words of a law are not specifically defined within that law, then to understand what they say, we re supposed to give them their ordinary, everyday, or plain meaning. But what if their meaning isn t plain? Or if there s more than one plain meaning? The Second Amendment presents a case of dueling plain meanings: the Amendment guarantees either a collective right of the American people to maintain armed militias, or the individual right of every American to tote a gun. The Amendment was ratified as part of the Bill of Rights in 1791, but it took another 217 years for the Supreme Court to decide which of these plain meanings is the legal one: the individual right to keep and bear arms. How interpretations of the Second 1

2 2 Unprotected speech Amendment evolved over more than two centuries shows that legal meaning making is a contingent, subjective, and ongoing process of reading and re-reading, and when the issue involves gun rights and regulations, it can be a contentious one as well. Since many of the interpretations of the Second Amendment involve linguistic analysis, how the courts have treated the right to keep and bear arms seems a perfect way to begin this study of language and the law. After considering the courts use of linguistic resources, particularly grammars and dictionaries, to craft their interpretations, we ll devote the rest of this study to he legal attempts to set the ever-shifting boundary between protected and unprotected speech. The Second Amendment consists of a single, twenty-seven word sentence: 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. 4amendms.tif Manuscript version of the right-to-bear-arms amendment. It was variously the sixth and fifth of the amendments considered by the House in 1789, and finally the fourth of twelve amendments that Congress sent to the states for ratification. It was the second of the ten amendments that the states approved in 1791 to form the Bill of Rights. Historically, the linguistic discussions of the Second Amendment s meaning have focused on the same questions: How does the Amendment s grammar affect its meaning? and How should we define its key words and phrases? These questions have been answered differently over time, and depending on who s asking: The first clause of the Amendment affirms the importance of the militia; the second affirms a right to keep and bear arms. What is the relationship, if any, between the two clauses? What is the militia? Just those citizen-soldiers who serve, or who are eligible for service, or all Americans regardless of their military status? Who are the people whose right to bear arms is guaranteed? The community as a whole, or each individual within it? The meaning of keep arms seems clear enough. But can bear arms, admittedly a military idiom, also refer to nonmilitary contexts like hunting and selfdefense? What factors outside the Amendment s text, if any, are relevant to its interpretation? Initially, the two clauses of the Amendment were thought to be inseparable. Article I, section 8, of the Constitution gives Congress the power to organize, arm, and train the

3 Guns and grammar 3 militia in each state, and the Second Amendment prevents the federal government from disarming these groups of part-time citizen-soldiers once it has created them. More recently, supporters of an individual right to gun ownership have argued that the Amendment s first clause the militia clause is irrelevant. That is what the Supreme Court concluded in Heller. Initially, the militia was defined as those serving or eligible to serve; more recently, it has been seen to encompass all Americans. That, too, is what the Supreme Court concluded in Heller. The people referred to in the Second Amendment can mean the nation, the state, or the community as a whole those whom the militia defends, the same people evoked by the first three words of the Constitution, We the people. But the phrase can also refer to each individual American, the same people whose rights are protected by the First and Fourth Amendments, which protect the rights of the people, which is to say, individual persons, to assemble, and to be safe from unreasonable search and seizure (they protect other things as well). In Heller, the Supreme Court defined the people in the Second Amendment as individuals, not the community. So what changed? Why did the courts, and perhaps the national mood, swing from reading the amendment as bolstering a collective right to arm a militia for the defense of the community, to something quite opposite, the individual right to carry a gun? Certainly, our understanding of the language of other parts of the Constitution has shifted drastically over time. Slavery, once legal, was barred; segregation, once legal, is no longer so; voting rights that were initially reserved for men eventually extended to women as well. Some of this was done by Constitutional amendment, some by statute, some by new interpretations of the law. The First Amendment guarantees free speech, but as we ll see repeatedly in subsequent chapters, the legal boundaries between free and banned speech have shifted drastically over the past century. Rights have even been read into the Constitution like the right to privacy that are not explicitly mentioned in the text. The Second Amendment, like any other text, legal, literary, religious, commercial, or personal, is not understood through its words alone. As Akhil Reed Amar (1994) has shown, even the most literal interpretations of the Constitution are conditioned by reading between the lines. Interpretation always feeds on experience and assumptions, many of them shared, some of them subjective, and some, in extreme cases, idiosyncratic. What changed specifically with the reinterpretation of the Second Amendment was a mood encouraged by the arguments and political clout of the pro-gun-rights NRA a growing sense of paranoia in the nation, a fear of crime, a fear of terrorism, even a fear of the government itself. This may not be a majority view, but it is a loud one. The public response to recent mass shootings favors increased gun control. But even though you can t have a school shooting without a gun, a poll taken before the Supreme Court s Heller decision indicated that seventy-five percent of Americans already thought that the Constitution guaranteed an individual right to gun ownership. What happened in Heller In District of Columbia v. Heller (2008), the Supreme Court ruled that Washington, D.C., could not impose a total ban on handguns, because Americans have an inherent right to self-defense, and handguns are their self-defense weapon of choice. But this interpretation of the right to bear arms only resolved some of the Second Amendment s ambiguity. The Heller court did not rule out all forms of gun control, only total bans on

4 4 Unprotected speech handguns. Constitutional rights may be strong, but they are not absolute. The late Justice Antonin Scalia observed in his opinion in the case: We do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose. [Heller 2008, 22] What follows in this chapter is a case study of the ways that the language of the Second Amendment has been read, and continues to be read. It offers insights into the making of legal meaning and suggests that such meaning is never fully fixed or settled. Law, like all language, is subject to interpretation, and interpretations change with time, with circumstance, with who is doing the interpreting. In Heller, the Supreme Court considered evidence from the dictionaries and grammar books and other documents from the Framers day as well as the present time. It weighed other evidence as well, including the Second Amendment s legislative history, the constitutions of the individual states, legal precedents involving Second Amendment questions, and legal commentaries on the Amendment. In the end, the Court split five-tofour along ideological lines as it interpreted the Amendment s meaning. The conservative majority found the D. C. handgun ban unconstitutional. The liberal minority, reading the same twenty-seven words, came to the opposite conclusion. When nine jurists who have spent their professional careers interpreting the law differ so drastically on the meaning of a single sentence, we are forced to conclude that meaning depends more on the reader than on the words. To paraphrase the slogan of the National Rifle Association, the organization that brought the Heller suit against the District of Columbia, words don t make meaning, people do. There are many contexts in which a single sentence can have contradictory yet equally-valid interpretations, the semantic equivalent of you say tomayto, I say tomahto. But when it comes to the meaning of the Second Amendment, majority rules: the reading preferred by five justices of the Supreme Court becomes the law of the land. The reading of the remaining four becomes a footnote. But even after Heller, the semantic uncertainties of the amendment s wording continue to muddy whatever plain meaning it may have: total bans on handguns are out; but what about total bans on assault rifles? Or bans on carrying guns, whether openly or concealed? Or restrictions on other kinds of arms (remember, not all arms are guns)? What follows is an account of how the Second Amendment s meaning in law came to be constructed, and why, despite the attention it gets both in and out of court, that meaning may never be wholly settled. 1 1 In the initial case challenging the handgun ban, Parker, et al., v. District of Columbia, 2007, the appeals court judge, Charles Silberman, used dictionaries and grammatical arguments to support his opinion. In its appeal of that decision to the Supreme Court, the District s Attorney General asked me to prepare an amicus brief explaining the Amendment s syntax and tracing the meaning of its key words from the eighteenth century to the present, in order to support the District s right to regulate firearms. I recruited the linguists Richard W. Bailey and Jeffrey Kaplan to assist in this effort, and the attorney Charles Dyke assisted us in drafting the brief. Opponents of the gun ban presented their own grammatical analysis to support their claims. Although this chapter has its origins in what the Court called the Linguists Brief, and the Heller outcome turned on more than linguistic arguments, I offer here a broader, retrospective analysis of the way in which the courts interpreted the language of the Second Amendment as they established its legal meaning.

5 Guns and grammar 5 Before Heller The Second Amendment seems like a big deal today, but historically that was not the case. So little attention was paid to the amendment during the first 150 years after its ratification that in 2002, Judge Stephen Reinhardt called it a relatively obscure constitutional provision (Silveira v. Lockyer 2002, 11). The few state courts that did address the Second Amendment in the nineteenth century had no trouble discerning its plain meaning. Unfortunately, like the two sides in Heller, they didn t always agree on what that plain meaning was. The Tennessee Supreme Court, in Aymette v. State (1840), understood it to establish the right of the people to possess arms suitable for use in the militia. In Nunn v. State (1846), the Georgia Supreme Court saw the Constitution protecting the pre-existing right of self-defense. Another Tennessee Supreme Court decision, Andrews v. State (1871), tried to reconcile both an individual and a collective right to keep and bear arms. Occasionally, someone challenged a criminal conviction by claiming that state or federal weapons laws violated their Second Amendment rights. The courts quickly dismissed such appeals, explaining that the right to bear arms did not include the weapons favored by murderers, robbers, brawlers, or other miscreants. As Judge William A. Fletcher noted in a recent post-heller case before the Ninth Circuit Court of Appeals, courts have never had a problem reconciling gun control with the Second Amendment s guarantee of the right to keep and bear arms (Peruta v. City of San Diego 2016). In 2017 the Supreme Court declined to review the Ninth Circuit s decision that there is no Second Amendment right... to carry concealed firearms in public. In the 1960s, the prevailing legal view that the Second Amendment guaranteed a collective right to own weapons suitable for military service began to shift, in large part because of the efforts of the National Rifle Association. The NRA, an organization that originally backed the licensing and regulation of firearms, reversed course and began pushing the theory that the Second Amendment wasn t about the militia or the defense of the state. Instead, it targeted an individual s right to own a gun for self defense or any other legal purpose. In a rhetorical coup, supporters called their new individual-rights reading of the Amendment the standard model, as if the older, collective rights interpretation had never existed (Bogus 2000b). The NRA s rhetoric has been so successful that in an unsuccessful challenge to California s assault weapons ban that we ll look at later in this chapter, the Ninth Circuit called this new interpretation the traditional individual rights model (Silveira v. Lockyer 2012, 12; emphasis added). Finally, in 2008, the Supreme Court came down on the side of the NRA s individual rights interpretation. And in 2010, the Court incorporated the Second Amendment, applying its individual rights interpretation to the states as well as to the federal government (Macdonald v. City of Chicago). These decisions had an immediate and far-reaching impact, throwing gun laws all over the nation into doubt. States and municipalities responded by broadening access to weapons we saw one result of that in Charlottesville in August, But some locales remained firm in restricting guns we saw one result of that a few days later at the free speech rally on Boston Common, where police arrested the one white supremacist who showed up with a gun.

6 6 Unprotected speech Aymette v. State Aymette v. State, an 1840 decision of the Tennessee Supreme Court, presents an early example of a collective-rights interpretation of a version of the federal Second Amendment written into the 1834 Tennessee constitution: That the free white men of this State, have a right to keep and bear arms for their common defence. [Tennessee Constitution Art. 1, sec. 26; note that this right, which specifies the common defense, does not extend to all Tennesseans, but is limited both by race and gender.] Tennessee_1834_Art_26_crop.tiff William Aymette had been convicted of carrying a concealed weapon, a Bowie knife, in violation of a Tennessee law that made it a misdemeanor to wear, any bowie knife, or Arkansas tooth-pick, or other knife or weapon, that shall in form, shape or size resemble a bowie knife or Arkansas tooth-pick, under his clothes, or keep the same concealed about his person. In his appeal, Aymette claimed that the no-knife law violated his right to keep and bear arms, as guaranteed by the state constitution. But the Tennessee Supreme Court upheld Aymette s conviction, ruling that the federal Bill of Rights only guaranteed a collective right to bear arms, and that the phrase common defence in the state constitution covers military weapons, not those used for private self-defense or criminal activity. In his opinion, Judge Nathan Green cited linguistic evidence the definition of common in Noah Webster s dictionary to support his interpretation: The word common here used, means according to Webster; 1. Belonging equally to more than one, or to many indefinitely. 2. Belonging to the public. 3. General. 4. Universal. 5. Public. The object then, for which the right of keeping and bearing arms is secured, is the defence of the public. [Aymette v. State 1840, 158; in the next chapter, we ll look more closely at how judges select, or reject, the evidence of dictionaries as they formulate their interpretations of legal language.] The Aymette court read the Second Amendment as affirming the right of citizens to own weapons suitable for collective, military defense, and it went on to specify with some energy that in contrast to this right to possess militia-style weaponry, owning personal weapons, which are easily turned to crime and violence, is not guaranteed to Tennessee residents: They need not, for such a purpose, the use of those weapons which are usually employed in private broils, and which are efficient only in the hands of the robber and the assassin. These weapons would be useless in war. They could not be employed advantageously in the common defence

7 Guns and grammar 7 of the citizens. The right to keep and bear them, is not, therefore, secured by the [Tennessee] constitution.... The legislature, therefore, have a right to prohibit the wearing, or keeping weapons dangerous to the peace and safety of the citizens, and which are not usual in civilized warfare, or would not contribute to the common defence. [Aymette 1840, ] Aymette even went so far as to interpret neighboring Kentucky s differently-worded guarantee that the right of the citizens to bear arms in defence of themselves, and the State, shall not be questioned to refer not to personal self-defense, but to armed communal action: As in their constitution, the right to bear arms in defence of themselves, is coupled with the right to bear them in defence of the State, we must understand the expressions as meaning the same thing, and as relating to public, and not private; to the common, and not the individual defence. [Aymette 1840, 161; in 1854, Kentucky clarified its own right to bear arms by forbidding the concealed carry of any deadly weapons, other than an ordinary pocket knife (Acts of the General Assembly of the Commonwealth of Kentucky, Chap [1854], v.1, p. 186; as quoted in Peruta v. City of San Diego 2016, 38.) That restriction has since been significantly loosened.] In addition to defining common, in Aymette Judge Green read the phrase bear arms as having a clear military reference. He found it undeniably military in Article 1, sec. 28, of the Tennessee constitution, where the reference can only be to militia service. In Green s view, bear arms must be interpreted in a military sense in sec. 26 as well. He further insisted that it would be unidiomatic to use bear arms in the context of hunting or personal self-defense, an assertion that is later disputed in Heller: The 28 th section of our bill of rights provides, that no citizen of this State shall be compelled to bear arms, provided he will pay an equivalent, to be ascertained by law. Here we know that the phrase has a military sense, and no other; and we must infer that it is used in the same sense in the 26 th section, which secures to the citizen the right to bear arms. A man in the pursuit of deer, elk and buffaloes, might carry his rifle every day, for forty years, and, yet, it would never be said of him, that he had borne arms, much less could it be said, that a private citizen bears arms, because he has a dirk or pistol concealed under his clothes, or a spear in a cane. [Aymette 1840, 161] Aymette is cited in two recent Circuit Court decisions discussed in more detail below, to support two contradictory readings: an individual right to bear arms (U.S. v. Emerson 2001) and a collective right (Silveira v. Lockyer 2002). However, Judge Green s decision explicitly affirmed only the collective rights interpretation of both the Tennessee constitution and, in passing, the United States Constitution. Not long after Aymette, the Georgia Supreme Court ruled in Nunn v. State (1846) that the state could regulate weapons use, but it could not ban such use entirely. Hawkins H. Nunn had been convicted for openly carrying a pistol. In his appeal, Nunn claimed

8 8 Unprotected speech that Georgia s 1837 Act to guard and protect the citizens of this State against the unwarrantable and too prevalent use of deadly weapons conflicted with his constitutionally-protected right to bear arms. In his opinion in Nunn, Georgia Chief Justice Joseph Henry Lumpkin noted that judges were permitted to deviate from the literal meaning of the language of the law, interpreting statutes by considering the subject matter, to which the words are always supposed to have regard. However, in the absence of a Georgia right-to-bear-arms provision, Lumpkin decided the case on the literal wording of the Second Amendment in the federal Constitution, where shall not be infringed means just that: The right of the whole people, old and young, men, women and boys, and not militia only, to keep and hear arms of every description, not merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right. Like Aymette, though, even this extreme opinion, which puts guns in the hands of children, if not toddlers, ties the right to keep and bear arms specifically to the Second Amendment s militia clause armed citizens are necessary for a citizen army. English v. State, an 1871 case from Texas, offers yet another example where a state court specified that the Second Amendment refers to weapons of war, not weapons of crime. William English appealed his conviction for carrying a pistol while intoxicated within the city limits of Jefferson, Texas, in part because the pistol in question was unloaded as well as broken. But the main thrust of his appeal was that the Texas law banning the carrying of deadly weapons conflicted with the Second Amendment. Moses B. Walker, writing the opinion for the Texas Supreme Court, was not impressed. The court upheld the law prohibiting the carrying of pistols... and certain other deadly weapons and, in fairly colorful terms, Walker affirmed English s conviction because the arms referred to in the second amendment to the United States constitution are the arms of a militiaman or soldier, and not, The deadly weapons spoken of in the statute... pistols, dirks, daggers, slungshots, sword-canes, spears, brass-knuckles and bowie knives. Can it be understood that these were contemplated by the framers of our bill of rights? Most of them are the wicked devices of modern craft. [English v. State 1871, 474] Judge Walker continued in the same tone, To refer the deadly devices and instruments called in the statute deadly weapons, to the proper or necessary arms of a well-regulated militia, is simply ridiculous. No kind of travesty, however subtle or ingenious, could so misconstrue this provision of the constitution of the United States, as to make it cover and protect that pernicious vice, from which so many murders, assassinations, and deadly assaults sprung, and which it was

9 Guns and grammar 9 doubtless the intention of the legislature to punish and prohibit. [English v. State 1871, 476] In another Second Amendment case in 1871, Andrews v. State (1871), the Tennessee Supreme Court took up where its earlier decision in Aymette left off, addressing an 1870 Tennessee Act to preserve the peace and prevent homicide, that made it illegal, for any person to publicly or privately carry a dirk, sword-cane, Spanish stiletto, belt or pocket pistol or revolver. The opinion of Judge Thomas J. Freeman supported Aymette, though it went a step further, reconciling Tennessee s constitutional right to bear the arms of soldiering, like the shot gun, the musket, and repeater, used by citizens in defense of [their] own liberties, as well as of the State, with the more-recent law that banned the carrying of a dirk, sword-cane, Spanish stiletto, belt or pocket pistol or revolver. Andrews expanded the discussion in Aymette by noting that, because legal weapons served the dual purpose of self-defense and national defense, no state could ban them. But the state could certainly ban weapons not useful for war, and it could regulate the use of legal arms for the public good... with a view to prevent crime (Andrews v. State 1871, 179; ). Freeman, like Judge Walker before him, laced his opinion with the kind of rhetorical flourishes that accompany a number of Second Amendment cases, including Heller, where passions on both sides run high: Admitting the right of self-defense in its broadest sense, still on sound principle every good citizen is bound to yield his preference as to the means to be used, to the demands of the public good; and where certain weapons are forbidden to be kept or used by the law of the land, in order to the prevention of crime a great public end no man can be permitted to disregard this general end, and demand of the community the right, in order to gratify his whim or willful desire to use a particular weapon in his particular self-defense. The law allows ample means of self-defense, without the use of the weapons which we have held may be rightfully proscribed by this statute. The object being to banish these weapons from the community by an absolute prohibition for the prevention of crime, no man s particular safety, if such case could exist, ought to be allowed to defeat this end. Mutual sacrifice of individual rights is the bond of all social organizations, and prompt and willing obedience to all laws passed for the general good, is not only the duty, but the highest interest of every man in the land. [Andrews v. State 1871, 189] United States v. Miller The collective rights interpretation which assumes the constitutionality of regulating personal weapons continues well into the twentieth century. It forms the basis for the decision in United States v. Miller (1939), the one significant U. S. Supreme Court Second Amendment case before Heller. Jack, or Jackson, Miller could have stepped right out of a 1930s Hollywood gangster film. He was a getaway driver and general all-around hoodlum turned FBI snitch

10 10 Unprotected speech (Frye 2008). Miller had been convicted of transporting an unregistered sawed-off shotgun across state lines in violation of federal law. He appealed, claiming that the National Firearms Act, passed in 1934 in response to a wave of high-profile mob killings like the St. Valentine s Day massacre, conflicted with his Second Amendment right to keep and bear arms. A lower court agreed, reversing Miller s conviction. The government appealed that reversal to the Supreme Court. The high Court continued its deliberations even though Miller disappeared suddenly and without a trace. At his criminal trial, Miller had testified against his gang of fellow bank robbers, and a month after Miller s bullet-riddled body was found in an Oklahoma field, the Court reinstated his conviction true, Miller s sentence now had to be limited to time served, but there was a principle at stake: affirming the constitutionality of the Firearms Act. According to the Miller Court, the Second Amendment must be interpreted in light of the Constitutional mandate that Congress provide for organizing, arming, and disciplining the Militia, and Miller s sawed-off shotgun did not come under the Amendment s protection: In the absence of any evidence tending to show that possession or use of a shotgun having a barrel of less than eighteen inches in length at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is in any part of the ordinary military equipment, or that its use could contribute to the common defense.... With obvious purpose to assure the continuation and render possible the effectiveness of [the militia], the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view. [Miller 1939] United States v. Emerson Although the Miller Court had no trouble finding that the plain meaning of the Second Amendment guaranteed a collective, community right to keep and bear arms, it did not detail what military weapons were protected by the Amendment, and more important, it did not explicitly rule on the meaning of the Amendment. Even so, for some sixty years, the lower courts followed the implied precedent in Miller, holding that the Second Amendment conforms to the Constitution s militia provisions. But in United States v. Emerson (2001), the Fifth Circuit Court of Appeals flipped that interpretation, announcing instead that the Second Amendment s plain meaning supported an individual s right to own a gun regardless of military service. Timothy Joe Emerson had been charged with violating the conditions of a restraining order, issued in conjunction with his divorce proceedings, that barred him from buying a firearm. Testimony showed that Emerson owned two pistols and a variety of assault weapons. He once aimed a pistol at his wife and cocked the hammer. And he also threatened to kill his ex s new partner. Ignoring the overwhelming evidence of his guilt, Emerson, in the tradition of Aymette, Nunn, English, and Andrews, appealed his arrest on Second Amendment grounds, and a lower court agreed, dismissing the indictment against him. The government appealed, and a panel of the Fifth Circuit,

11 Guns and grammar 11 finding that there was no Second Amendment violation, reinstated the indictment. But in his majority opinion in Emerson, Judge William Garwood took the opportunity to draft a long, tangential essay insisting that, even though Emerson was exactly the kind of person who shouldn t be allowed to have a gun, the Second Amendment does support the right for most people to bear arms. Garwood s Second Amendment digression is not binding in his concurrence in Emerson, Judge Robert Parker criticized Garwood for grandstanding with 84 pages of dicta, judicial commentary that has no legal force. Despite that objection, Garwood s comments have influenced subsequent Second Amendment jurisprudence. What is interesting for us, from the perspective of linguistic analysis, is Garwood s insistence that the Second Amendment s plain meaning protects an individual right to keep and bear arms: The history of the Second Amendment reinforces the plain meaning of its text, namely that it protects individual Americans in their right to keep and bear arms whether or not they are a member of a select militia or performing active military service or training. [Emerson 2001, ] Even so, Garwood acknowledged that the right to bear arms is not absolute, and he saw no problem affirming the restraining order against Emerson: Although, as we have held, the Second Amendment does protect individual rights, that does not mean that those rights may never be made subject to any limited, narrowly tailored specific exceptions or restrictions for particular cases that are reasonable and not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country. [Emerson 2001, 101] The Emerson ruling created a legal paradox: the plain meaning of the Second Amendment, as constructed in Miller, is pretty much the opposite of the plain meaning found in Emerson. Adding to the confusion, in the wake of Emerson, the Department of Justice abruptly changed its interpretation of the Second Amendment. When the Fifth Circuit hear Emerson s appeal, Solicitor General Theodore Olson urged the court to accept the government s collective rights interpretation, that the Second Amendment protects only such acts of firearm possession as are reasonably related to the preservation or efficiency of the militia. [Olson 2001, 19n.] But when Emerson appealed the Fifth Circuit s decision to the Supreme Court, Olson asked the justices not to review the case because the government believed that unfit persons like Emerson should not have guns, and also it had changed its mind about the Second Amendment. The official position of the Department of Justice now parroted the words of Judge Garwood s individual rights reading: The current position of the United States... is that the Second Amendment more broadly protects the rights of individuals, including

12 12 Unprotected speech persons who are not members of any militia or engaged in active military service or training, to possess and bear their own firearms, subject to reasonable restrictions designed to prevent possession by unfit persons or to restrict the possession of types of firearms that are particularly suited to criminal misuse. [Olson 2001, 19-20n.] Olson also told the Court that Attorney General John Ashcroft had sent a memorandum on this revised interpretation of the Second Amendment to all U.S. attorneys. Ashcroft s memo quoted the same passage from what it called Judge Garwood s scholarly and comprehensive review of the Second Amendment supporting an individual rights interpretation; asked that all Second Amendment cases be coordinated; and promised that the Justice Department will vigorously enforce federal law in a manner that heeds the commands of the Constitution (Ashcroft 2001). In the event, the Supreme Court declined to review the Emerson decision. The Court never explains such decisions, but presumably the Justice Department s Second Amendment flip flop played a role. Silveira v. Lockyer By 2001, the Second Amendment had acquired two conflicting plain meanings a traditional collective right to bear arms contradicting the newly-asserted individual right a situation that prompted Judge Stephen Reinhardt, of the Ninth Circuit Court of Appeals, to declare in Silveira v. Lockyer that the Second Amendment s text was ambiguous, and that its plain meaning was not so plain at all. Silveira challenged California s 1989 ban on assault weapons, passed by the state legislature in response to an elementary school shooting in Stockton where five children were killed and twenty-nine children and one teacher were injured. California s Assault Weapons Control Act, the first in the nation, formed the basis for the 1994 federal assault weapons ban. The plaintiffs in the case owned, or sought to own, the types of weapons banned by California s law. In its decision, the Ninth Circuit rejected their challenge and affirmed the assault weapons ban. In his opinion, Judge Reinhardt found the text of the Second Amendment ambiguous: Given the history and vigor of the dispute over the meaning of the Second Amendment s language, we would be reluctant to say that the text and structure alone establish with certainty which of the various views is correct. [Silveira v. Lockyer 2002, 39] And he found little guidance in Miller, the one pertinent Supreme Court ruling on a Second Amendment issue: The Miller Court s opinion stands only for the proposition that the possession of certain weapons is not protected, and offers little guidance as to what rights the Second Amendment does protect.... What Miller does strongly imply, however, is that the Supreme Court rejects the traditional individual rights view. [Silveira 2002, 14; as we saw above, it s the collective rights view that is traditional; the individual rights view is new.]

13 Guns and grammar 13 And so Reinhardt took his cue from retired Chief Justice Warren Burger, who insisted that in order to interpret the Second Amendment, its legislative history the purpose, setting, and objectives of the Framers must be taken into account: [The] Second Amendment guarantees a right of the people to keep and bear arms. However, the meaning of this clause cannot be understood except by looking to the purpose, the setting and the objectives of the draftsmen. [Burger 1990, emphasis added; many of the pre-heller interpretations of the Second Amendment take into account both the amendment s language and the discussions surrounding its adoption, its legislative history.] Burger, the conservative Chief Justice of the United States appointed by Richard Nixon upon the retirement of the ultra-liberal Earl Warren, agreed with the Aymette court that gun control was a necessary and legitimate government function. He was certain that the Framers placed the right to bear arms in the narrow context of an armed, wellregulated militia, a state army, not a national one: The provision concerning firearms emerged in very simple terms with the significant predicate basing the right on the necessity for a well regulated militia, a state army (Burger 1990). Reinhardt also cited Burger s attack on the NRA s distortion of the meaning of the Second Amendment. According to the Chief Justice, the idea that there is an individual right to bear arms is one of the greatest pieces of fraud I repeat the word fraud on the American public by special interest groups that I have ever seen in my lifetime.... The real purpose of the Second Amendment was to ensure that state armies the militia would be maintained for the defense of the state. The very language of the Second Amendment refutes any argument that it was intended to guarantee every citizen an unfettered right to any kind of weapon he or she desires. [Burger 1991; Burger distinguished sporting guns from other kinds of firearms, and he made clear his belief, bolstered by the Second Amendment, that handguns and assault weapons do not belong in the hands of ordinary citizens.] Before Silveira, right-to-bear-arms cases did not typically pick apart the language of the Second Amendment. Instead, they intuited the Amendment s plain meaning, and explained that meaning to us. Aymette makes one slight exception: citing Webster s popular contemporary dictionary to interpret the phrase for the common defence in Tennessee s constitution. But in Silveira, Judge Reinhardt closely analyzed the language of the Second Amendment, considering the sense of its words people, militia, bear arms, and keep along with the amendment s grammar. Reinhardt argued that people in the amendment refers not to individuals, but to the American people as a whole: The amendment protects the people s right to maintain an effective state militia, and does not establish an individual right to own or possess firearms for personal or other use. [Silveira 2002, 23]

14 14 Unprotected speech Reinhardt did acknowledge that this reading conflicts with the definition of the people articulated by the Supreme Court as a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community (United States v. Verdugo-Urquidez 1990, 494). To justify his reading that people can have two different meanings, even when they appear in the same document, Reinhardt cited James Madison, no minor authority on the constitutional text (Madison drafted the Second Amendment): No language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many equivocally different ideas [Madison, The Federalist NO. 37, at 197 (Clinton Rossiter, ed., 1961)]. Reinhardt concluded, with reluctance, that the Supreme Court s definition of the people must prevail. But if that s the case, he argued, if people must mean the same thing each time it appears in the Constitution, the same applies to militia, which cannot refer to a fighting force in some parts of the Constitution and to individual members of that force in the Second Amendment (Silveira 2002, 31). In Heller, the Supreme Court would reinterpret the meaning of militia and people as all Americans, over the objections of the dissent in that case. But in Silveira, Reinhardt read militia more narrowly, and no doubt more naturally, as a state military force, not only because that is the ordinary meaning of the word, but because contemporaneously enacted provisions of the Constitution that contain the word militia consistently use the term to refer to a state military entity, not to the people of the state as a whole. [Silveira 2002, 29; emphasis added.] Reinhardt found that the Amendment s second clause, though ambiguous, fits with the military reference of the first clause (technically, the first part of the amendment is a phrase, not a clause, but all the legal discussions of the Amendment call it the militia clause, in the broader sense of clause as a distinct part of a sentence [OED]). To support his interpretation of militia as a military force, Reinhardt looked to the Oxford English Dictionary s definition of bear arms, a phrase that normally carries a military connotation: The second clause the right of the people to keep and bear Arms, shall not be infringed is not free from ambiguity. We consider it highly significant, however, that the second clause does not purport to protect the right to possess or own arms, but rather to keep and bear arms. This choice of words is important because the phrase bear arms is a phrase that customarily relates to a military function. [Silveira 2002, 33] Opponents of gun regulation often argue that the phrase to keep and bear arms refers to two connected rights: the right of Americans to keep arms to store them in their homes, their cars, their luggage, or anywhere else that property is kept and the right to bear them, to carry them either openly or concealed on their person. Even if one grants that bear arms is a military term, keeping arms cannot be limited to military

15 Guns and grammar 15 contexts. But in Silveira, Reinhardt argued that keep does not do extra work in terms of the right referred to: The reason why that term was included in the amendment is not clear.... Certainly the right to keep arms is of value only if a right to use them exists. The only right to use arms specified in the Constitution is the right to bear them. Thus, it seems unlikely that the drafters intended the term keep to be broader in scope than the term bear. [Silveira 2002, 36.] In Heller, Justice Scalia used the same sort of argument to make the opposite point: keep and bear is not a single, unitary phrase. For him, word choice is important, and if the Framers had wanted to eliminate ambiguity and designate a collective right rather than an individual one, then they would have chosen different words. Although neither interpretation convincingly explains the Amendment s use of keep and bear, it s clear that legal language is peppered with nearly-synonymous pairs like assault and battery, on or about, or cease and desist, which appear to make fine legal distinctions that cover all the bases. But in practice the individual meanings in these phrases blend together, and each pair tends to function as a single unit serving a single purpose. In Silveira, Reinhardt also commented briefly on the syntax of the Second Amendment, which consists of two parts: a prefatory clause that not only states the reason for the amendment, but also helps shape and define the meaning of the substantive provision contained in the second clause, and thus of the amendment itself (Silveira 2002, 37). But in light of the controversy surrounding the amendment, and the Emerson decision a year earlier, Reinhardt supplemented his linguistic analysis with historical and legislative evidence, citing both the comments surrounding the drafting and ratification of the Second Amendment, and other contemporary documents supporting a reading of the Amendment that guarantees a collective rather than an individual right. Notably, Reinhardt explained that most of the constitutional debate on the Amendment stressed the need for an armed militia, and that only one state proposed an alternative that protected a specific, individual right to bear arms: Alone among the 13 colonies, New Hampshire... recommended a proposed amendment to the Constitution explicitly establishing a personal right to possess arms: Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion.... The New Hampshire proposal is significant not only because it was substantially different from the proposals to emerge from the various other state conventions (which in turn were quite similar to that ultimately enacted as the Second Amendment), but also because it suggests that an amendment establishing an individual right to bear arms would have been worded quite differently from the Second Amendment. [Silveira 2002, 54; the New Hampshire proposal for an individual right to bear arms speaks of any Citizen, in the singular, but the subsequent exception, such as are or have been in Actual Rebellion apparently envisions a group of armed, rebellious citizens. But it is most significant because it did not pass.]

16 16 Unprotected speech Finally, Reinhardt addressed the debate over an early draft of the Second Amendment which included a conscientious objector provision a provision that was deleted from the final version the amendment: The fact that the overwhelming majority of the debate regarding the proposed Second Amendment related to the conscientious objector provision demonstrates that the congressmen who adopted the amendment understood that it was concerned with the subject of state militias. A right not to bear arms due to conscientious objection can only mean a right not to be compelled to carry arms that the government seeks to make one bear to perform military service that one is unwilling to perform. There is no possible relevance of the term conscientious objection to a constitutional amendment guaranteeing a private right to possess firearms. [Silveira 2002, 57] Parker and the DC gun law Three years after the Ninth Circuit came out for a collective rights interpretation of the right to bear arms, the Circuit Court of Appeals for the District of Columbia ruled in favor of the individual rights reading. This split in the circuits offers a prime example of professional interpreters of the law disagreeing about its meaning, a disagreement which is reflected again when the Supreme Court agreed to review the case and resolve the Second Amendment s ambiguity. In 2005, Shelly Parker and five other plaintiffs sued the District of Columbia in federal court on the grounds that the city s thirty-two-year-old ban on handguns violated their constitutionally-protected right to bear arms. Parker and three other plaintiffs wanted to buy handguns for self defense, but could not do so under D.C. law. A fifth had a shotgun permit, but argued that the District s gun law required such weapons to be kept unloaded, unassembled, or locked, rendering the guns useless for self defense. And a sixth, Dick Anthony Heller, was a District of Columbia special police officer, a security guard who was permitted to carry a handgun at work and sought permission to keep a gun at home as well. The U.S. District Court dismissed the Parker suit, but on appeal the Circuit Court of Appeals struck down the city s gun ban (Parker, et al., v. District of Columbia, 2007), ruling as it did so that only Dick Heller had standing to challenge that ban. The District appealed the Parker decision to the Supreme Court, where the case was renamed District of Columbia v. Heller. In Parker, Judge Silberman stressed that the fundamental right of self defense underlies the Second Amendment, citing the English Bill of Rights of 1689 as guaranteeing everyone s right to bear arms (Parker 2007, 21; also cited in Heller 2008, 19). But the English Bill of Rights proves a poor precedent, since it was, in effect, a guncontrol statute, not a license to bear arms. Passed at the end of the English Civil War, it limited weapons ownership to Protestants, provided they belonged to the right social class, and its history and phrasing suggests its purpose was to defend Protestants as a group from attacks by the army of a tyrannical king: That the Subjects which are Protestants may have Armes for their Defence suitable to their Conditions and as allowed by Law [1689 An act declaring the rights and liberties of the subject, p. 5, emphasis added]

17 Guns and grammar 17 eborptexcerpt.tif Although self defense is commonly recognized as a pre-existing, natural right affirmed by common law and later specified in the English Bill of Rights, there is also a long history of arms regulation in English law suggesting that self-defense is one thing, arms possession, something else again. England has had strict weapons control since the fourteenth century, when laws began stipulating that guns were for the wealthy, not the peasants or the middle class (Schwoerer 2000). But the British support of strict weapons control disappoints American gun rights activists, who don t cite any English legal precedents after To back up the self-defense argument, the Parker court relied on linguistic analysis, among other things, to decide the Amendment s meaning. In Silveira, Judge Reinhardt felt constrained by an earlier Supreme Court ruling that people can have only one meaning in a document. However in Parker, Judge Silberman argued that although the people can only mean one thing, each and every American, militia may have two senses: a military one in Article I of the Constitution, and a nonmilitary one in the Second Amendment. Continuing his examination of the Amendment s semantics, Silberman cited definitions of keep and bear from the dictionaries of Samuel Johnson (1755) and Noah Webster (1828), in order to emphasize the usefulness of early dictionaries in ascertaining what words meant to the Framers: The Oxford English Dictionary and the original Webster s list the primary meaning of bear as to support or to carry.... Dr. Johnson s Dictionary which the Supreme Court often relies upon to ascertain the founding-era understanding of text... is in accord. Silberman used these and other eighteenth-century sources to argue that, since bear arms has been used in both military and non-military contexts, its meaning cannot be constrained by the military sense. Instead, the phrase does not refer just to soldiering, but to any activity that involves weapons: The term bear Arms is obviously susceptible to a military construction. But it is not accurate to construe it exclusively so.... There are too many instances of bear arms indicating private use to conclude that the drafters intended only a military sense. [Parker 2007, 24] The argument that, because a term like bear arms is found in one sense doesn t mean it can t have other meanings, is later echoed in Justice Scalia s opinion in Heller. There, Scalia s insistence that a less-common meaning can serve as the legal meaning directly contradicts Justice Samuel Alito s assertion four years later, in Taniguchi v. Kan Pacific Saipan (2012) that, when a word has multiple meanings, its most common meaning must function as its plain meaning in the law. Heller is a landmark Constitutional case, and Taniguchi is a narrow one involving legal fees (we ll discuss it

18 18 Unprotected speech in the next chapter when we look at dictionaries). Even so, these cases show the Supreme Court supporting within a very short time period two conflicting ways of understanding plain meaning: a word s most common sense constitutes its plain, or legal meaning; a word s less-common sense may also be its plain, or legal meaning. What s different about the linguistic analysis in Parker is the contradictory approach to word meaning in a single case: people has only one meaning; militia and bear arms have two. Such looseness in interpretive strategy confirms Judge Reinhardt s observation in Silveira that the Second Amendment s plain meaning is not plain. But it further suggests that ideology, predisposition, personal experience, and other non-textual factors are important determiners of legal meaning. That, in turn, should come as no surprise, because, even though we expect the law to be objective, subjective elements are vital in determining all linguistic meaning, a point we will return to repeatedly in this book. The grammar of the Second Amendment In addition to interpreting words like the people and bear arms in Parker, Judge Silberman pointed to the grammar of the Second Amendment, which divides into a prefatory militia clause and an operative second clause: Silberman viewed the first as a bit of constitutional throat-clearing that has no bearing on the right to bear arms. He found the Amendment s meat in its operative clause, the right of the people to keep and bear arms shall not be infringed. In Silberman s view, and in the view of the majority in Heller, no matter what the Framers intended the militia clause to mean, the operative clause prevents the District of Columbia from imposing an absolute ban on handguns. From a legal perspective, the two parts of the Second Amendment may do different work, but linguistically-speaking, the Amendment s grammar doesn t separate two halves. Instead, its syntactic structure firmly knits two semantically inseparable ideas into a single grammatical unit, the sentence that is the Second Amendment. Even supporters of the individual rights interpretation admit as much: both Judge Silberman and Justice Scalia felt compelled to revise the plain meaning of militia in order to make the two halves of the Amendment line up neatly: if militia means, not just those eligible to serve, but everyone, then the Constitution is saying that everyone s right to have a gun shall not be infringed. 4amendprint.jpg Early printed version of the Second Amendment 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. Judge Silberman paid particular attention to the Second Amendment s punctuation and its role in separating the Amendment s first clause from it essential main clause: The provision s second comma divides the Amendment into two clauses; the

19 Guns and grammar 19 first is prefatory, and the second operative (Parker, 13). This departs from earlier legal understandings that the first clause was integral to the Amendment s interpretation. Although it s clear that the Amendment has two parts, we should not give the Second Amendment s punctuation undue weight as separators and markers of meaning. Despite the popular myth that punctuation can make the difference between life and death, punctuation is variable, not rigid, and it does not always determine meaning. One popular illustration of the importance of punctuation is humorous but ultimately misleading: (1) Let s eat, grandpa. (2) Let s eat grandpa. What these sentences actually demonstrate is that punctuation may not matter all that much: no one would argue that sentence (1) is an invitation to dine, but no one in their right mind reads the second sentence the one without the comma as an invitation to cannibalism. If they did, the example would not be funny. Punctuation was particularly variable in the eighteenth century. Here are some examples from the Constitution itself. In Art. I, sec. 10, the Framers write it s as the possessive form of it: No state shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing it s inspection laws (emphasis added). This is not a scrivener s error but a common usage of the time. Modern practice requires its, reserving it s for the contraction of it is, and a student writing it s for its today would be marked wrong. But the Framers and their contemporaries had no problem adding the now-gratuitous apostrophe. As for Constitutional commas, their use also differs from present practice: commas serve sometimes to mark syntactic breaks, sometimes to indicate pauses for breath, and sometimes, as in Article III, sec. 1, to separate subject from verb, another practice that is frowned on today: The judicial Power of the United States, shall be vested in one supreme Court. Even the Second Amendment uses a comma to separate the subject and verb of its main clause: the right of the people to keep and bear Arms, shall not be infringed. So irregular is eighteenth-century English punctuation that Robert Lowth, the premier grammarian of the age, considered its rules imperfect, full of exceptions, and subject to the judgement and taste of the writer (1762, 155).

20 20 Unprotected speech lowthpunctuation.jpg Lowth found the rules of punctuation to be imprecise and variable: few precise rules can be given, which will hold without exception in all cases. Even constitutional amendments drafted in the twentieth century show irregular comma use. The 26 th Amendment, lowering the voting age, was proposed and ratified in It ignores the standard punctuation practice of the 1970s. Like earlier examples of constitutional prose, the Amendment separates a restrictive clause with commas, and like the Second Amendment, it adds a comma separating subject from predicate: The right of citizens of the United States, who are 18 years of age or older, to vote, shall not be denied or abridged by the United States or any state on account of age. [Emphasis added; once again, students using such punctuation in 1971 would be referred to the appropriate section of their usage books for correction.] These examples demonstrate that, even today, punctuation in such carefully-vetted documents as constitutions and their amendments does not always control meaning. Finally, the Second Amendment itself played fast and loose with punctuation: some copies of the Second Amendment sent to some of the states for ratification had a different number of commas from the official three-comma version as printed by the federal government. Despite such minor variations, the states are all considered to have ratified the same amendment (Van Alstyne 2007). Even the Parker opinion offers differently-punctuated versions of the amendment. Judge Silberman quoted a threecomma amendment on page three, but on page twelve the amendment gets only the first two commas, not the third. Since punctuation correlated only loosely with meaning in the eighteenth century, it would not be an exaggeration to claim that the Second Amendment would mean the same thing not just when it was written but today as well whether it had one, two, or three commas, or even none at all. The Second Amendment s preambulatory absolute Commentators have rightly paid more attention to the Second Amendment s syntax than to its punctuation, but they draw inferences from that syntax that are at best misleading, at worst, just plain wrong. In Silveira, Judge Reinhardt commented on the Amendment s unique structure, which includes a prefatory clause, a syntactical device that is absent from all other provisions of the Constitution, including the nine other provisions of the Bill of Rights (Silveira 2002, 26). In Parker, Judge Silberman called the Amendment s first words a preambulatory clause. Here are those words, once again: a well regulated militia, being necessary to the security of a free state.... Grammatically, the structure is an absolute phrase. Silberman didn t call it an absolute, but his argument closely tracked legal scholar Nelson Lund s discussion of the absolute in the Amendment s preamble (Lund 2007). Lund, whose expertise is law, not language, and who filed an amicus brief in Heller supporting an individual rights interpretation, insisted that an absolute is grammatically independent from a sentence s main clause, and so can have no impact on the meaning of that sentence:

21 Guns and grammar 21 The most significant grammatical feature of the Second Amendment is that its preamble is an absolute phrase, often called an ablative absolute or nominative absolute. Such constructions are grammatically independent of the rest of the sentence, and do not qualify any word in the operative clause to which they are appended. [Lund 2007, 12] This, for Lund, constituted grammatical proof of the individual rights reading: the militia clause might as well be invisible. Lund went so far as to say that the Second Amendment would mean what it means even if the militia referred to in the preamble was nothing but a figment of the Framers imagination: The other most significant grammatical feature of the Second Amendment is that the operative clause is a command. Because no word in that command is grammatically qualified by the prefatory assertion, the Second Amendment has exactly the same meaning that it would have had if the preamble had been omitted, or indeed if the preamble is demonstrably false. [Lund 2007, 13] But even though he cited grammarian George Curme s discussion of the absolute, Lund mistook the meaning of grammatical independence. He was right that no word in the command is grammatically qualified by anything in the prefatory assertion. That s because very few words in Modern English grammatically qualify other words. Instead, most of our words connect and qualify one another through their meaning, not their form. Grammatical dependence and independence It is true that grammarians call absolutes independent, but the independence they refer to is narrowly technical, based on the grammatical structures found in Latin and other inflected languages, like Old English, but not in Modern English. In Old English, the absolute governed the dative case. This means that the noun in an absolute construction had a suffix which indicated that it was in the dative case. The case, in turn, conveys some semantic information about the noun, specifically, its connection to the overall meaning of the sentence. In Latin, the case associated with the absolute was the ablative, hence the term Lund used, the ablative absolute. The information that the case conveys specifies the nature of the connection between that noun and the sentence s main clause. In Modern English, case marking has all but disappeared from English nouns. We still indicate the genitive, or possessive case in writing, the possessive is shown by s. Except for this, nouns take the same form whether they are the subject of the verb, the object, the indirect object, the instrumental, or the ablative. George Curme puts it this way: in Modern English the noun in the subordinate clause no longer has a dative suffix to signal its relationship with the main clause, but even though it s not overtly marked by grammar, the relationship between the two parts of the sentence still exists (Curme 1931, v. 3, ). The grammarian C. T. Onions writes that the grammatical absolute comes from the Latin absolutus, meaning free, because... [the phrase] seems to be free of the rest of the sentence (Onions 1904, 66; emphasis added). Seems is the operative word here, referring to grammatical, not semantic, independence: the phrase looks like it s free of

22 22 Unprotected speech the rest of the sentence, but it s not. An implicit relationship exists even though the explicit marking of the relationship has been lost. For the Second Amendment, that implicit relationship the connection between the absolute and the main clause is one of cause and effect. Curme gives these examples from Modern English: (1) He being absent, nothing could be done. (2) My task being completed, I shall go to bed. (3) Mr. Smith being the toastmaster, I think we may expect an enjoyable time. [Curme 1931, 153] The importance of the absolute to the meaning of the sentence as a whole was crystal clear to eighteenth century grammarians. William Ward (1767, 145) shows just how important the meaning of the absolute is when he calls it the equivalent of a whole sentence. And Lyndley Murray (1795, ), whose grammar was widely used in American schools in the late eighteenth and early nineteenth centuries, demonstrates the obvious cause-and-effect function of the absolute, even as it is separated by commas from the body of the sentence, with this sentence: His father dying, he succeeded to the estate. Dying is the participle indicating the dependence of the absolute on the main clause. In Murray s example, the effect cannot easily be disconnected from the cause: the son cannot inherit unless the father dies. He certainly cannot inherit if the father s death was a figment of his imagination. Absolutes were common enough in the Framers day to be readily understood. Onions (1904, 69) observes that although absolutes were relatively rare in earlier periods of English, by the seventeenth century the construction had become thoroughly naturalized, offering an important... resource [to] all writers... for the purpose of expressing subordinate conceptions. Otto Jespersen (1949, vol. V, 46) attributes the increased popularity of the absolute in the seventeenth century to the influence of classical prose as a model for English writers, and Evans and Evans (1957, s.v., participles) further note that while absolutes are often associated with written rather than spoken English, they occur naturally in English and some have even become common idioms: that being the case and present company excepted. All Things Considered, the name of the well-known NPR evening news program, is an absolute phrase. Eighteenth-century Americans had probably seen their share of absolutes long before they read the Second Amendment. They might have been tested on the construction in grammar school in some federalist version of No Child Left Behind. But even without formal schooling, the citizens of the new republic would have had no trouble understanding the absolute that specifies the reason for establishing land-grant public colleges in Article 3 of the Northwest Ordinance of 1787: Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged. But Nelson Lund argued that since the causal relation marked by the absolute is not explicit, it can be ignored. According to him, if the framers really wanted to connect

23 Guns and grammar 23 the militia with the right to bear arms, they should have modeled the Second Amendment on the Patent and Copyright clause of the Constitution (2007, 14-15). That clause reads, The Congress shall have Power... To promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. [Art. 1, sec. 8] It is often possible to point out a better way for the authors of a proposition to have worded it. But one could respond to Lund that if the Framers had wanted to secure an individual right to gun ownership, they would have written, Private possession of arms being necessary to individual freedom, or even, simply, The right of the people to keep and bear arms shall not be infringed, without any conditioning absolute at all. It is worth pointing out, too, that the Second Amendment is the only one with a conditioning causal phrase, a fact which suggests that the absolute is important, not just a decorative preamble. Lund was aware that the absolute of the Second Amendment is both prominent and unusual. He even called the absolute the Amendment s most significant grammatical feature and then proceeded to tell us how insignificant it really is (Lund 2007, 12). The absolute was certainly familiar to James Madison, who drafted the Second Amendment and who used absolute constructions elsewhere in his writings. Here s a sentence containing not one, but two of the many Madisonian absolutes: The Executive power being in general terms vested in the President, all power of an Executive nature, not particularly taken away must belong to that department, that the power of appointment only being expressly taken away, the power of Removal, so far as it is of an Executive nature must be reserved. [Letter to Edmund Pendleton, New York, June 21, 1789; emphasis added.] We might consider ourselves fortunate that, in contrast to this ponderous sentence, written two weeks after Madison presented his draft of the Bill of Rights to the House of Representatives, the final syntax of the Second Amendment is a minimalist work of art. But style aside, the point to remember is that Madison would not have used absolutes in his essays, in his correspondence, or in the Second Amendment, if he suspected that his readers might find the construction odd, ambiguous, or unimportant. Commenting during oral arguments in Heller, Justice Kennedy, like Judge Silberman and Nelson Lund, disconnected the two halves of the Amendment, though without the grammar lesson and without dismissing the importance of a militia: [T]here is an interpretation of the Second Amendment... that... in effect delinks them.... The amendment says we reaffirm the right to have a militia, we ve established it, but in addition, there is a right to bear arms. [Supreme Court 2008, 5-6] It s fine to argue that prefatory statements declaring the purpose of a law should not limit the scope of that law. But that has nothing to do with grammar. Our examination of absolute constructions in English shows that, despite Justice Kennedy s observation, the clauses of the Second Amendment should never be delinked.

24 24 Unprotected speech How the Second Amendment took its shape It s true that we must interpret the Second Amendment in the form that was ratified by the states, but given the fact that there has been substantial disagreement over how to read the amendment, it seems reasonable to consider the amendment s drafting history, how Congress changed its wording from the time it was proposed until it was presented to the states, because these changes stress the significance of the militia clause and they reinforce the military meaning of bear arms. The historical record preserves little of the debates on the amendment in the House, and none of the debates in the Senate, but the six versions of the amendment as it made its was through Congress show us what persisted and what changed (see Table 000). Broadly speaking, text was added, rearranged, and removed. The reasons for these edits may not be explicit, but their results are clear. Although some of the edits resolved unnecessary repetition, two produced major changes. Madison s original draft had the militia clause in second place. In the initial revision, a House select committee moved the militia clause to the front of the amendment, making it more noticeable. Subsequent edits sharpened its wording, but the militia clause kept its initial position, a likely sign of its importance and a sure sign that it was meant to stay. Madison s proposal also had a final clause explicitly exempting conscientious objectors from bearing arms for military service. That clause, with its unmistakable military context, was also revised several times to clarify its wording, but on August 17, Rep. Egbert Benson, of New York, moved to strike the clause because this humane provision should be left to the wisdom and benevolence of the government. It was improper to make it a fundamental in the constitution The House rejected Benson s motion in a close vote, 22-24, but strong sentiment against the CO provision may be why the Senate dropped the measure two weeks later from version five. A few days later, the House approved the sixth and final Senate version, which again sharpened the wording of the militia clause, and whose text we now know as the Second Amendment (Cogan 1997, 171) first_draft_2a_crop.tiff Madison s proposal for what would become the Second Amendment [Gales and Seaton s History of Debates in Congress, June 8, 1789, 447]

25 Guns and grammar 25 2amendprint1789.jpg Fourth version of the proposed amendment, at that point numbered Article 5, printed in the Connecticut Gazette, Sept. 4, 1789, p. 2. 2a_crop_Statutes_tiff Final version of the Second Amendment as, ratified. [Public Statutes at Large, 1845: vol. I, p. 21] Versions of the Second Amendment 1. The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person. [Madison s original draft, presented to the House on July 8, 1789] 2. A well regulated militia, composed of the body of the people, being the best security of a free State, the right of the people to keep and bear arms shall not be infringed, but no person religiously scrupulous shall be compelled to bear arms. [Version in the report of the House select committee, July 28] 3. A well regulated militia, composed of the body of the people, being the best security of a free State, the right of the people to keep and bear arms shall not be infringed, but no person religiously scrupulous shall be compelled to bear arms in person. [House version approved August 20] 4. A well regulated militia, composed of the body of the People, being the best security of a free State, the right of the People to keep and bear arms, shall not be infringed, but no one scrupulous of bearing arms, shall be compelled to render military service in person. [Version approved by House and Senate, Aug. 24] 5. A well regulated militia, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed. [Senate version, Sept. 4; there is no record of the Senate debate on the matter] 6. 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. [Approved by the House and Senate, Sept. 9, 1789, and sent to the states] Table 000: Versions of the Second Amendment

26 26 Unprotected speech In Heller, Justice Scalia supported the individual rights interpretation of the Second Amendment with examples from the debate surrounding the Amendment, and from its legislative history, but he dismissed the drafting history of the Second Amendment as irrelevant for him, only its final wording counts. Even so, the fact that the militia clause survived five revisions suggests that Congress meant the words to be there. Furthermore, as Justice Stevens noted in his dissent, reading the Second Amendment as a statement in which every word counts including the militia clause follows from Chief Justice John Marshall s opinion in Marbury v. Madison (1803) that it cannot be presumed that any clause in the constitution is intended to be without effect (Stevens 2008, 8). But even without Marshall s ruling, it would have been clear to eighteenth-century readers that the first part of the Amendment was bound to the second in a cause-and-effect relationship, that the right to bear arms was tied by the Framers directly to the need for a well-regulated militia. It is clear that the Framers and the First Congress, who massaged the Second Amendment to get it just right, intended for the militia clause to play an important role in our understanding of the right to bear arms. Regardless of the drafts, Nelson Lund argued that purpose clauses like the militia clause are legally irrelevant, that only operative clauses have any effect. Scalia and Garner similarly acknowledged that a preamble, purpose clause, or recital is a permissible indicator of meaning, though such prologues are asides, not part of the congressionally legislated or privately created set of rights and duties (2012, 217). And in his opinion in Heller, Justice Scalia affirmed that a prefatory clause does not limit or expand the scope of the operative clause (Heller, 4). In other words, it s there, but it doesn t count. Arguing that we must look to the militia clause in order to unravel the meaning of the Second Amendment s operative clause, Justice Stevens, in his dissent in Heller, referred to Blackstone, whose legal analyses Scalia relied on to support his own reading of the Second Amendment. Blackstone argued that prefatory statements are indeed useful if a statute s words are unclear: If words happen to be still dubious, we may establish their meaning from the context; with which it may be of singular use to compare a word, or a sentence, whenever they are ambiguous, equivocal, or intricate. Thus, the proeme, or preamble, is often called in to help the construction of an act of parliament. [1 Commentaries on the Laws of England (1765); cited by Stevens, 31 the very existence of the Heller case suggests that the Second Amendment s words were, as Blackstone would have it, still dubious. ] These factors taken together suggest that the militia clause is important, not just ornamental. Eighteenth-century readers would have noticed it, not ignored it. Until Justice Scalia determined in Heller that they were wrong to do so, the Supreme Court and most of our lower courts noticed it as well. Defining the Second Amendment s words A well regulated militia, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed.

27 Guns and grammar 27 Both sides in the Second Amendment debate supporters of the collective rights interpretation and supporters of the individual rights interpretation have skirmished over the meaning of the Amendment s words. What is a militia? Who are the people? What are arms? What does it mean to keep and bear them? In Heller, the Court addressed these definitions head on. Not surprisingly, each side produced its own interpretation of the plain meaning of the Amendment s key words. What is a militia? On the off-chance that the Second Amendment s prefatory clause does have some meaning, gun rights advocates would like the term militia to include everybody, not just those eligible to serve. Supporters of gun control prefer to read the Second Amendment as connecting gun ownership specifically with militia service. For them, militia refers to the group of volunteer citizen soldiers, the weekend warriors we now call the National Guard, the military force that evolved from the eighteenth-century American state militias. Article I, section 8, of the Constitution gives Congress the power to provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions. It further empowers the federal government to organize, arm, and discipline the militia, and divides the responsibility for the militia between the federal and state governments. A well-regulated militia, the kind referred to in the Second Amendment, is not a band of irregulars like the sectarian armies struggling for power in failed political states. It is not an impromptu posse chasing a villain with a hue and cry, as it was in medieval England. It is not a ragtag band of disgruntled white supremacists who reject government authority, refuse to pay taxes, and march in Skokie and Charlottesville. It is not a hunt club or the patrons of a shooting range. And until the Supreme Court revised the legal definition of militia in Heller, it had not been the collective body of all Americans from whom a militia may be raised. According to the Constitution and relevant federal law, the militia is a military force consisting only of those eligible to serve. In the Framers day, that included ablebodied free males ages sixteen to forty-five (sometimes older), not the entire group of men, women, and children living in the United States. More than a few of those patriots eligible to serve opted out on the grounds of conscience, bought out their obligation because they could, or sought even more creative ways to avoid service. Since the ratification of the Constitution, the militia has also been a body that has been regulated, that is to say, trained, well, and constitutionally, by federal authority. The constitutional references to the militia are consistent with various eighteenthcentury definitions of the term. For example, Samuel Johnson s Dictionary (1755, s.v.) defines militia as the trainbands; the standing force of a nation (trainband is a seventeenth-century term, no longer in use, for a temporary, citizen-army; while standing force refers to a nation s permanent army). Noah Webster s definition more clearly captures the meaning of the American version of the militia: The body of soldiers in a state enrolled for discipline, but not engaged in actual service except in emergencies; as distinguished from regular troops, whose sole occupation is war or military service. The militia of a country are the able bodied men organized into companies, regiments and

28 28 Unprotected speech brigades, with officers of all grades, and required by law to attend military exercises on certain days only, but at other times left to pursue their usual occupations. [Webster 1828, s.v.] The Oxford English Dictionary confirms this reading of militia with a cite from Adam Smith s Wealth of Nations (1776): [The state] may... oblige either all the citizens of the military age, or a certain number of them, to join in some measure the trade of a soldier to whatever other trade or profession they may happen to carry on.... Its military force is [then] said to consist in a militia. The OED also defines militia in its specifically American context: In the U.S.: the body of able-bodied citizens eligible by law for military service. Now hist[orical].... The reconstitution of the U.S. militias as the National Guard was substantially complete by the beginning of the 20th cent. [emphasis added] The Dictionary of Americanisms defines militia as, The whole body of adult male citizens capable of bearing arms and gives the following citations, which show that the whole body really refers to the subset of the population as defined by the laws relating to military service: Beverley Virginia IV.34 Every Freeman... from sixteen, to sixty years of age, is listed in the militia Jefferson Notes 94 Every able bodied freeman, between the ages of 16 and 50 is enrolled in the militia Cent. 3761/2 Militia,... the whole body of men declared by law amenable to military service, without enlistment, whether armed and drilled or not. [Mathews 1951, s.v., militia] These dictionaries do not define militia to include the total body of citizens, though the last of Mathews examples, taken from the Century Dictionary, suggests a broader definition of militia than is typical, those men declared by law amenable to military service, rather than those actually trained to serve, but even here, to be a member of the militia one must still be amenable, that is to say, eligible by law, to serve in that organized, presumably all-male, fighting force. It is also clear that James Madison considered militia to refer to a subgroup of American citizens, albeit a large one, rather than each and every individual American. In Federalist 46, Madison, addressing the concerns of antifederalists, envisioned as a worstcase scenario a militia of citizen soldiers to be deployed against a tyrant (someone, for example, like King George III): To [this federal standing army of twenty-five to thirty thousand soldiers] would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among

29 Guns and grammar 29 themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. [Madison 1788, Federalist 46, emphasis added] Madison numbered the militia at near half a million, which is a large number, but it is not everybody: the 1790 Census, directed by Thomas Jefferson, counted over 3.9 million Americans. Furthermore, although the United States had only recently fought a war against an unjust government, and despite what Federalist 46 suggests, the Constitution did not empower the militia to foment rebellion against the new American government or to counter the force of the nation s standing army. Instead, the militia was referred to over and over as the best vehicle for the defence of the state, not as a force to attack it (Cogan 1997). As Garry Wills (1995) and others remind us, no constitution comes with a self-destruct clause. Instead, the militia is legally constituted as a military arm of both the states and the federal government which may be called upon as needed to enforce the law, not to rebel against the law. As we saw when Pres. Eisenhower called out the National Guard in the 1950s to undergird federal desegregation in the Little Rock schools, or when George W. Bush sent the National Guard to fight in Iraq, the job of the militia has always been to reinforce the standing army in securing domestic order and repelling foreign threats. In his opinion in Heller, Justice Scalia acknowledged that the militia is a subset of Americans, but that very fact reinforces the distinction he then made between the militia and the people: The militia in colonial America consisted of a subset of the people those who were male, able bodied, and within a certain age range. Reading the Second Amendment as protecting only the right to keep and bear Arms in an organized militia therefore fits poorly with the operative clause s description of the holder of that right as the people. [Heller, 7] Scalia reconciled the poor fit between the militia clause of Article I and his interpretation of the Second Amendment s militia clause by arguing that Article I really envisions two militias: The ordinary definition of the militia [is] all able-bodied men.... Although the militia consists of all able-bodied men, the federally organized militia may consist of a subset of them (Heller, 23). For Scalia, if we read militia to mean everybody in Article I, then the Second Amendment s militia clause even though it is inoperative fits neatly with the people in its operative clause (Heller, 23). Who are the people? The Heller Court defined the meaning of people in the Second Amendment s operative clause: The right of the people to keep and bear arms shall not be infringed. The right of the people appears in two other places in the Constitution. The First Amendment protects the right of the people peaceably to assemble, and to petition the government for a redress of grievances. And the Fourth Amendment guarantees the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. Justice Scalia argued in his opinion that constitutional phrases like we, the people, refer to Americans collectively, but such instances do not deal with the exercise

30 30 Unprotected speech of rights (Heller 2008, 6). However, since the First and Fourth Amendments clearly protect the rights of individuals, the Second Amendment, must be read to protect an individual right as well (Heller 2008, 5). Justice Stevens rejected this reasoning in his dissent. Stevens found Scalia s claim inconsistent in that it applies the protections of the Second Amendment to a subgroup of the people, the right of law-abiding, responsible citizens to use arms in defense of hearth and home (Heller 2008, 63). Stevens argued that the protections of the First and Fourth Amendments extend to all, even to felons or the irresponsible. In contrast, Scalia s reasoning suggests that felons like Miller and threatening spouses like Emerson may legally be denied the right to own a gun (Stevens 2008, 9). To keep and bear arms... Having interpreted militia and people as virtual synonyms, the Heller Court had to decide on the meaning of arms, and what it means to keep and bear them. From the discussions in oral arguments in Heller, and from both Justice Scalia s opinion and Justice Stevens dissent, it s apparent that the justices defined the bearing of arms in ways that supported their overall sense of what the Second Amendment guarantees, and what it does not. As it did in defining militia, the Court consulted dictionaries to answer questions about what the words keep and bear arms meant in the Framers day, and what they mean now. Along with the dictionaries of Samuel Johnson and Noah Webster, Justice Scalia cited Timothy Cunningham s New and Complete Law Dictionary (1771), where arms is defined as any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another. Variations on this definition occur in English legal texts going back to the thirteenth century. For example, in On the laws and customs of England, Henry Bracton writes, We regard as armed not only those who come with weapons, but all those who have anything that may cause injury. All things by which men may inflict injury are included in the word weapons. If one comes unarmed, but during the course of the argument picks up sticks, staves [or] stones, it will be called armed force. [Bracton ca. 1250, III: 20; translated from the original Latin.] And John Cowell, echoing Bracton, writes in The interpreter of words and terms (1701) that the meaning of arms and armor extends to any thing that a Man in his wrath or fury taketh into his hand, or wears for a defence, wherewith to cast at or strike another. In his dissent in Heller, Justice Stevens cited both Samuel Johnson s definition of arms as weapons of offence, or armour of defence (1755) and John Trusler s by arms, we understand those instruments of offence generally made use of in war; such as firearms, swords, &c. (1794).

31 Guns and grammar 31 truslerarms.jpg John Trusler defines arms as those instruments of offence generally made use of in war. The Distinction Between Words Esteemed Synonymous in the English Language, 37 (1794). Cunningham s definition is general: arms include knives and guns as well as sticks and stones and anything else that can cause harm. Trusler s is narrower, referring primarily to instruments of war. Scalia, who discounted the militia clause and found the District of Columbia s handgun restrictions overbroad, preferred Cunningham s definition because it s not tied to military weapons, but covers just about anything that can be used offensively or defensively. Justice Stevens, who read the militia clause as directly informing the amendment s guarantee, preferred Trusler s definition because it focuses on weapons of war suitable for militia use. None of the definitions refer to arms used in hunting or for target practice, though some gun rights advocates insist that the Second Amendment covers these as well. Bearing arms As we ll see in the next chapter, sometimes the justices can t find the support they re looking for in dictionaries. When a judicial interpretation of a law clashes with the lexical evidence, courts may reject the authority of the same dictionaries that in other cases they hold up as repositories of wisdom and reason. In Heller, none of the justices thought that the Second Amendment protected a citizen s right to own a tank or a surface-to-air missile, even though such weapons fit the definition of arms as weapons of war. But they did argue over the meaning of the phrase bear arms, specifically, whether the Second Amendment protects the right to bear arms only in connection with military service, or whether its meaning is broad enough to support the general sense, carry a gun. The Court s conservative majority decided that bear arms triggered a general rather than a militia-specific meaning, and that the Second Amendment guaranteed the right to bear arms for hunting and for self-defense as well. No one can deny that the two-word phrase bear arms sometimes has a nonmilitary reference. Cramer and Olson (2008) list a number of eighteenth- and nineteenthcentury examples, though some of those are ambiguous, and in others the military sense is implied. Bear arms typically has different connotations from carry arms, connotations we associate with concerted or official actions rather than individual ones. For the most part, though, bear arms is not easily adapted in English to civilian activities like selfdefense, hunting, or sport. As the historian Garry Wills put it, One does not bear arms against a rabbit (1995). Here Wills echoes Aymette:

32 32 Unprotected speech A man in the pursuit of deer, elk and buffaloes, might carry his rifle every day, for forty years, and, yet, it would never be said of him, that he had borne arms. [Aymette ] But Justice Scalia rejected the dictionary evidence that did not support his understanding that the natural meaning of bear arms, applied to the Second Amendment, is simply, carry a gun : The phrase bear Arms also had at the time of the founding an idiomatic meaning that was significantly different from its natural meaning: to serve as a soldier, do military service, fight or to wage war.... But it unequivocally bore that idiomatic meaning only when followed by the preposition against, which was in turn followed by the target of the hostilities. [Heller, 12, emphasis added] Despite Scalia s insistence, many clearly military references for bear arms are not followed by a preposition or its object. But to discount such examples, Scalia argued that even when bear arms occurred in unambiguously military contexts, the fact that the phrase was commonly used in a particular context does not show that it is limited to that context (Heller, 15). Fair enough, but the instances of the nonmilitary bearing of arms are few and far between. As Justice Stevens observed, Amici determined that of 115 texts that employed the term [bear arms], all but five usages were in a clearly military context, and in four of the remaining five instances, further qualifying language conveyed a different meaning. [Stevens 12, citing the Linguists Brief] In other words, when bear arms is used in non-military contexts, the words either allude to the military sense of the phrase, or they strike the ear as odd, very much like bearing arms against a rabbit. Even the origin of bear arms is military it s a direct translation of the Latin arma fero though of course the origin of a phrase doesn t prevent it from developing other senses. Bear arms typically refers in both Latin and English to the act of soldiering and the use of military weapons. The most pertinent American reference to bearing arms before the Second Amendment is its use in the Declaration of Independence: The present King of Great Britain... has constrained our fellow citizens... to bear arms against their country. While arms may be anything from Saturday night specials and brass knuckles to kitchen knives and baseball bats, the idiomatic phrase bear arms has always primarily meant to go for a soldier, as in this example from a proclamation made by Josiah Martin, the British governor of North Carolina, in 1776: I do hereby... promise, and assure, to each and every Person or Persons who shall join His MAJESTY S Forces and bear Arms against the Rebels in this Province... a Grant... of Land in Proportion to their Circumstances, Merit and Pretensions. [Martin 1776; emphasis added]

33 Guns and grammar 33 Far less commonly, bear arms may refer to individuals carrying weapons, as in this example from 1645: There shall be a cessation of bearing of armes vnto the meeting howse vpon the Lord s daye (Craigie 1938, s.v. arm). In oral arguments in Heller, Justice Scalia referred to the eighteenth-century Parliamentary act for disarming the Scottish Highlanders to underscore his belief that bear arms regularly refers to carrying weapons in nonmilitary contexts: [A]s I recall the legislation against Scottish highlanders and against against Roman Catholics did use the term forbade them to keep and bear arms, and they weren t just talking about their joining militias; they were talking about whether they could have arms. [Supreme Court 2008, 17] But his recollection was inaccurate. The relevant portion of the 1715 Highlander Statute reads as follows: It should not be lawful for any Persons... to have in... their Custody, use or bear, Broad Sword... Side-Pistol... or Gun, or any other warlike Weapons, in the Fields, or in the Way coming or going to, from or at any Church, Market, Fair, Burials, Huntings, Meetings or any other occasion whatsoever.... And in case any of the said Person or Persons... shall... bear Armes, otherwise than in this Act directed... [they] shall... forfeit all such Arms. [Statutes at Large 1715; emphasis added] The act bans having, using, or bearing warlike weapons, and its goal is to disarm the population in order to end organized rebellion against the crown. It s true that the statute hampered hunting and self-defense as well, which produced further Scottish antipathy toward England, but its primary intent was military in nature. The opponents of gun control also make much of the minority view of Pennsylvania antifederalists, who like many other citizens of the new nation wanted a Bill of Rights attached to the Constitution, and who tried unsuccessfully to propose an amendment in that Bill of Rights in which bear arms would refer not just to protecting the state, but also to hunting and to self defense: That the people have a right to bear arms for the defense of themselves and their own state, or the United States, or for the purpose of killing game. [Address 1787, 6] But even this proposal, which was not discussed or adopted by Congress, also recognizes the need to regulate weapons for the public good: No law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals (Address 1787, 6, emphasis added). Pennsylvania ratified the federal Constitution without a Bill of Rights, but it did write one into its own state constitution in 1790: The right of the citizens to bear arms for the defence of themselves and the state shall not be questioned. Similar language is found in Ohio s 1802 constitution (Davis 1823, 91; 179). Whether the Pennsylvania and Ohio state constitutions, which appeared after the Second Amendment was drafted, but before it was adopted, sought to remedy a Constitutional defect by applying the right to bear arms to individuals, or they simply wished to extend the notion of bearing arms

34 34 Unprotected speech beyond its normal military use, such specification was unusual and did not reflect the ordinary meaning of the phrase to bear arms, as it appears, for example, in the Massachusetts constitution: The people have a right to keep and to bear arms for the common defence (Freeman 1805, 11). Freeman elaborates further in his discussion of the civil rights and liberties 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 and degree, and such as are allowed by law. Which... is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression. [Freeman 1805, 473; emphasis added] Freeman s words echo those of the English Bill of Rights and emphasize both governmental control of arms and the value of community self defense, which he explains in the language of a just revolution, when the sanctions of society and laws are found insufficient to restrain the violence of oppression, not the language of keeping one s home and person safe from intruders (Freeman 1805, 473). This is much the same sentiment that Madison expressed in Federalist 46, where he argued that armed citizens would serve only in the most extreme case as a check on a federal government that had become so tyrannical it could be stopped in no other way. But no one in the eighteenth century, and no responsible citizen today, would think that the Second Amendment authorizes armed resistance to a democratically-constituted government. What s important for Constitutional interpretation is the fact that the final version of the Second Amendment, while it recognizes the connection between arms and a wellregulated militia, makes no mention of bearing arms for the defense of [individuals]... or for the purpose of killing game, and so the Pennsylvania minority opinion was either ignored or rejected by the framers of the federal Constitution, and by the states. Supporters of an individual right to bear arms may argue that the Constitution implies such a right, or that its silence on the subject means that the existence of a prior natural right to own weapons was so obvious to everyone that there was no need for the Amendment to address it. But their argument that bearing arms in hunting and selfdefense is idiomatic English is at best only weakly supported by textual evidence from the eighteenth century or earlier. Nineteenth- and twentieth-century dictionaries also confirm that bear arms refers to military service or the sorts of communal self defense for which a militia is organized. Webster s New International Dictionary (1919) defines bear arms as to serve as a soldier, a definition that is repeated in Webster s Second New International Dictionary (1934). And Funk and Wagnalls New Standard Dictionary (1929) defines bear arms as, to do military service (s.v., bear, vb.). But after groups like the National Rifle Association flooded the language with prose in which bear arms becomes a synonym for carrying guns, Webster s Third (1961, s.v. bear) abandoned that traditional military restriction and changed the primary definition of the phrase to the more general, to carry or possess arms, citing the Second Amendment to illustrate the definition. Webster s Unabridged Dictionary retains To serve as a soldier as a secondary definition.

35 Guns and grammar 35 The first edition of the Oxford English Dictionary (1888) offers the more general, To carry about with one, or wear... weapons of offence or defence, adding, To bear arms against: to be engaged in hostilities with. And the most recent OED includes this: fig. to bear arms: to serve as a soldier, do military service, fight. Citations for bear arms in the latest OED suggest both military and non-military contexts for the phrase: 1663 H. COGAN tr. F. M. Pinto Voy. & Adventures I. 199 That all those which were able to bear arms should make themselves Amoucos, that is to say, men resolved either to dye, or vanquish. [s.v., amok] 1774 LD. KAMES Sketches Hist. Man (1807) II. II. ix. 261 In Switzerland..every male who can bear arms is regimented, and subjected to military discipline. [s.v., regiment, v.]?1790 N. WYNDHAM Trav. through Europe III. 319 The public force... is composed, of the land and sea armies.... And, subsidiarily, of the active citizens, and their children of age to bear arms. [s.v., subsidiarily] 1824 F. PLOWDEN Human Subordination 153 In July 1803, upon the renovation of hostilities with Napoleon, some genuine Catholics thought it a favourable opportunity to address the throne to recommend to Parliament the removal of all disabilities for Catholics to bear arms. [s.v., renovation] 1834 W. BETHAM Orig. & Hist. Constit. Eng. iv. 87 [Leicester] ordained... that no one should bear arms, without the king s license, on pain of life and limb. [s.v., life] 1855 W. H. PRESCOTT Hist. Reign Philip II I. I. vii. 239 Philip dismissed all those of the common file, on the condition that they should not bear arms for six months against the Spaniards. [s.v., condition] 1916 G. B. Shaw Androcles & Lion i. 9 The men, if of an age to bear arms, will be given weapons to defend themselves..against the Imperial Gladiators. [s.v., age] 2001 D. C. GOULD Times Brother Jonathan v. 150 The proclamation was made in November 1775, freeing all black indentured servants, black birds, slaves who were able and willing to bear arms for the king to join the British Army. [s.v., blackbird] oed-beararms.jpg

36 36 Unprotected speech Above: Original Oxford English Dictionary (1888) entry for bear arms (s.v., arms]; the phrase ensigns of office refers to coats of arms or other indicators of rank, not to weapons. Below, Webster s Third New International Dictionary entry for the phrase. w3beararms.jpg Despite the insistence of gun rights advocates, and the occasional historical citation, the idiom bear arms does not stretch comfortably to accommodate many nonmilitary meanings. In oral arguments in Heller, Justice David Souter challenged Solicitor General Paul Clement s insistence that bear arms means to carry them outside the home. Souter asked, But wait a minute. You re not saying that if somebody goes hunting deer he is bearing arms, or are you? Clement replied, I would say that and so would Madison and so would Jefferson. But Souter, pressing his point, wasn t convinced: In the eighteenth century, someone going 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 they talked: Well, I will grant you this, that bear arms in its unmodified form is most naturally understood to have a military context. And it is this unmodified form, not Justice Scalia s unambiguous bear arms against, that we find in the Second Amendment. Justice Scalia disagreed. For him, the bare, or unmodified, use of bear arms could easily refer to carrying weapons for self defense, and he cited in support of this an earlier dissent by Justice Ginsberg in Muscarello v. United States. But Muscarello turned on the meaning of the phrase carrying firearms, not bear arms, and in her dissent Ginsburg doubted that dictionaries can elucidate the meaning of carry as it appears in the relevant statute: I do not think dictionaries... tell us, dispositively, what carries means.... Surely a most familiar meaning is, as the Constitution s Second Amendment... indicate[s]: wear, bear, or carry... upon the person or in the clothing or in a pocket, for the purpose... of being armed and ready for offensive or defensive action in a case of conflict with another person. [Muscarello v. United States 1998, ] Although Ginsburg mentioned the Second Amendment, she was actually citing the definition of carry arms in Black s Law Dictionary (4ed., 1951). In contrast, Black s definition of bear arms (not bear arms against, but just plain, unmodified bear arms) stresses the military associations of the phrase: to carry arms as weapons and with reference to their military use. Interestingly, the military aspect of bear arms is eliminated in the fifth edition of Black s (1981), and Black s tenth edition defines the right to bear arms as, The constitutional right of persons to own firearms (Garner 2014, s.v., right to bear arms). But the dictionary s entry for Second Amendment stresses the