New URL for COFEA and COEME: https://lawcorpus.byu.edu.
Having dealt in my last post with how bear arms was ordinarily used and understood in 18th-century America, I’ll turn in this post to the question of how it was used in the Second Amendment.
I’ll begin by considering how the right to bear arms would most likely have been understood during the Founding Era. As I will explain, I think it would have been understood to mean something along the lines of ‘serve in the militia.’ I’ll then ask whether that conclusion is changed by the fact that the right to bear arms is described in the Second Amendment as belonging to “the people.” My answer will be that my conclusion is unchanged.
My next post will wrap up my examination of the Second Amendment by considering whether my interpretation is ruled out by the fact that the Second Amendment deals not simply with the right of the people to bear arms but with their right to keep and bear arms. And again, the answer will be no.
the right to bear arms
All else being equal, one would expect bear arms to have been understood to mean the same thing in the Second Amendment that it was ordinarily understood to mean. That suggests, first of all, that it would most likely have been understood as an idiom conveying a sense related to the military, rather than being understood to mean ‘carry weapons,’ whether for purposes of being ready for a confrontation or otherwise. As I’ve tried to show in my last two posts, the idiomatic, military-related sense(s) overwhelmingly dominated the corpus data.
As you can tell by the “(s)” in “sense(s),” I’m hedging my bets on whether bear arms had more than one military-related sense. Although many if not all of its uses can be grouped into two clusters (roughly speaking, ‘serve in the militia/military’ and ‘participate in hostilities’), that doesn’t necessarily mean that each cluster represents a separate sense. For that reason, among others, I’m not going to try to figure out which use was more frequent.
But even with that issue being unresolved, it seems likely to me that bear arms in the Second Amendment would have been understood to mean ‘serve in the militia’ rather than ‘participate in hostilities.’ I base that conclusion on two factors. The first is that it is consistent with the fact that it was possible, at least in theory, for someone to serve in the militia without ever doing any fighting or otherwise participating in hostilities. The second is that there is a pretty strong reason to think that bear arms was understood to mean the same thing with respect to the right to bear arms as it meant with respect to the duty to bear arms—and as I explained in my last post, I think that the duty to bear arms was understood as a duty to serve in the militia.
The latter conclusion, for which I’ll offer a fair bit of evidence, was dismissed by the Supreme Court in Heller as not even meriting serious consideration. The court said that the right to … bear arms couldn’t possibly have meant “the right to be a soldier or to wage war” because that would have been “an absurdity that no commentator has ever endorsed.” The court provided no evidence that such an interpretation would be mistaken, much less that it would be absurd. The only authority of any kind that it cited was Origins of the Bill of Rights, by the legal historian Leonard Levy, which says essentially the same thing as Heller does, but provides no evidence to back it up.
The unsupported assertions by Levy and the Supreme Court don’t withstand examination.
To start with an issue that isn’t terribly important in the scheme of things but is nevertheless relevant in evaluating Heller as an exercise in public-meaning originalism, the court was wrong in saying that no commentator had ever argued that the right to bear arms protected “the right to be a soldier or to wage war.”
For example, in a book published two years before Heller was decided, the historian Saul Cornell argued at length that during the Founding Era, the right to bear arms was regarded as a “civic obligation.” According to Cornell, the right to bear arms was bound up with a duty for eligible citizens to serve in the militia: “citizens had both a right and an obligation to arm themselves so that they might participate in a militia.” Although Cornell’s formulation differs slightly from the court’s, they are essentially the same in substance.
Cornell’s argument was brought to the court’s attention in an amicus brief that he joined in:
Militia service was also treated as a matter of civic duty, for a key element in republican thinking reaching as far back as Machiavelli treated the obligation to bear arms in defense of one’s country as one of the rights and privileges that distinguished republican citizens from the subjects of other polities that slavishly relied on hireling soldiers lacking intrinsic loyalty to the regime.44
44 This point merits far more development than it can receive here, for it illustrates how republican thinking conceived of rights not solely as something to be protected against abuse by the state, but in the very different language of the civic duties of citizens. The right to serve on a jury was thus regarded as being at least as important, and arguably more so, than the right to be tried by one. The relation between this civic conception of rights and the right to keep and bear arms is developed in Saul Cornell, A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America (2006).
I assume that the court in Heller either overlooked this point or failed to appreciate its relevance.
Although Cornell’s interpretation of the Second Amendment is disputed by gun-rights advocates, the idea that bearing arms was regarded as both a right and a duty is not controversial. For example, it is referred to repeatedly in The Founders’ Second Amendment: Origins of the Right to Bear Arms, by Stephen Halbrook, a gun-rights advocate whose work was cited in the majority opinion in Heller. For example:
Like the other colonies, Delaware traditionally recognized keeping and bearing arms as both a right and a duty. [p. 142.]
The Society of Western Gentlemen proposed revisions to the Constitution in the April 30 Virginia Independent Chronicle. In addition to a free press, it would have declared: “The people have a right to keep and bear arms, for the national defence; standing armies in time of peace are dangerous to liberty, therefore the military shall be subordinate to the civil power.” A separate provision would have made bearing arms a duty: “The community have a right to require of every individual his personal services when necessary for the common defence. . . .” [p. 218.]
The proposed amendment[*] was finally accepted after the insertion of the words “in person” at the end of the clause. This discussion highlighted the sentiment that not only “bearing,” but also merely “keeping” of arms by the people was considered both a right and a duty to prevent standing armies. [p. 271.]
[*] “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.” [p. 253.]
In the ensuing months [of 1790], congressional debate on military legislation would shed light on contemporaneous thinking on standing armies, militia, and bearing arms both as a right and a duty. [p. 299.]
Of course, Halbrook’s statements don’t constitute primary evidence that bearing arms was regarded as both a right and a duty. But such evidence can be found in the corpus data.
This first example seems to me to clearly express the attitude toward bearing arms that Cornell refers to:
(1) BROTHER-SOLDIERS—Of the military system of the United States, we form a part. It ought to be impressed upon us, that we also are parties in the great order and arrangements of government; and although but individual companies, of an individual State, we too have duties to perform, and efforts to contribute, essential to the general security and happiness of our country. We are minute links of that connected chain, which binds into strength and unity, our Federal Government. Our institution owes its origin, and its continuance, to that unalterable, and incontrovertible principle of all free governments, that as it is the right, so it is the duty of every man to bear arms in defence of his country. And we believe it repugnant to the spirit of that principle, that any official dignity, any petty, paltry, professional immunities, should exempt any man from the highest, and most sacred duty he owes his country.
[Line 37, with extended context (source). From William Hunter, “An oration, delivered in the Baptist Meeting-House in Newport, July 4, A.D. 1795, on the celebration of the nineteenth anniversary of American independence.”]
This example is from The Fundamental Constitutions for the Province of East New Jersey in America (1683):
(2) And that amongst the present Proprietors there are several that declare, that they have no freedom to defend themselves with arms, and others who judge it their duty to defend themselves, wives and children, with arms; . . . no man that declares he cannot for conscience sake bear arms, whether Proprietor or planter, shall be at any time put upon so doing in his own person, nor yet upon sending any to serve in his stead. And on the other side, those who do judge it their duty to bear arms for the publick defence, shall have their liberty to do in a legal way. [Lines 38a, 361, with extended context.]
The next two examples arise out of the opposition (especially among Anti-Federalists) to standing armies and the corresponding support for universal militia service.
One of them is an address delivered in 1797 by Massachusetts Governor Samuel Adams (who two decades earlier had been a signer of the Declaration of Independence). In his address, Adams condemned standing armies and “select militias” (militias composed of a relatively small group of men), on the ground that because they included only a subset of the population, the interests of soldiers or militiamen would diverge from those “of our fellow Citizens at large[.]” Much better, Adams argued, was the existing militia system, “constituting one simple body, & embracing so great a proportion of the Citizens as will prevent a seperate interest among them, inconsistent with the welfare of the whole.” (Recall the discussion about Granville Sharp in my last post.) Therefore, Adams thought it vital to require service by “all the active Citizens, within the age prescribed by Law.” He expanded on that point, in terms that treated militia service on the one hand and the right to bear arms on the other as two sides of the same coin:
(3) Those principles [of the existing militia system] … I conceive, should equally apply to all the active Citizens, within the age prescribed by Law, – All are deeply interested in the general security; & where there are no invidious exemptions, partial distinctions or privileged bands, every Man, it is presumed, would pride himself in the right of bearing arms, & affording his personal appearance in common with his fellow Citizens. – If upon examination you shall find, that the duties incident to our present System bear harder on one class of Citizens, than on another, you will undoubtedly endeavor, as far as is possible, to equalize its burthens.
[Line 502, with extended context. From “Address by Samuel Adams, Governor of Massachusetts, to the General Court of Massachusetts” (Jan. 27, 1797). Source.]
In case it’s not clear from the quote above: the people who Adams said would “pride [themselves] in the right of bearing arms” were those serving in the militia. Adams was therefore equating the right to bear arms with the right to be a soldier—precisely the view that the Supreme Court in Heller dismissed as “an absurdity.”
The final example comes from the Congressional debate in 1798 over a bill to establish a “provisional army” that would have been something of a hybrid between the militia and a standing army. Pennsylvania Congressman Albert Gallatin opposed the bill, on the grounds that it posed all the dangers of a standing army and none of the advantages of the militia. At one point he asked why the proposed provisional army would be more effective in opposing an invasion than the militia, and another representative answered that those who would volunteer for the provisional army were likely to be “men of property, or who have expectations of coming into possession of property, [which] will be the very reason why they will prove a sure defence of the country.” And here is Gallatin’s response, as reported in the record of the debate:
(4) Mr. G. said, he had as much confidence in men of property as others, but no more than he had in every free, independent citizen. Whether a man be rich or poor, provided he has a common interest in the welfare of the community, he had an equal reliance upon him. And this is a Constitutional idea; for the Constitution says, “the rights of the people to bear arms shall not be questioned.” [Line 503, with extended context. Source.]
Like Adams, Gallatin was equating the right to bear arms with the right to serve in the militia, although his manner of expression was somewhat murkier. When Gallatin said that he has “an equal reliance” on the rich man and the poor man, as long as each one “has a common interest in the welfare of the community,” I don’t think he was literally talking about who he was personally willing to rely on—or at least he wasn’t talking only about that. The real message he was trying to convey, or the main message, was that the poor had the same right to participate militarily in the nation’s defense as the rich.
That’s certainly how he was understood by the historian Nathan Kozuskanich, who wrote that Gallatin opposed the provisional army “in part because wealthy Federalists would join the ranks of the volunteer corps and undermine the constitutional rights of poorer Republicans to participate in the militia[,]” and that he believed that “the proposed corps would subvert citizens’ constitutional right to bear arms in a militia[.]” If that understanding of Gallatin is correct—and I have trouble seeing what else he could have been understood to be saying—his statement is significant for our purposes here because he attributed his argument to the Constitution (“this is a Constitutional idea”) and in particular to the protection of the right of the People to bear arms. So once again, the right to bear arms and the right to serve in the militia were being treated as essentially one and the same.
THERE ARE two more data points that I want to talk about before moving on to the an examination of the right of the People to bear arms.
The first data point consists of two separate but similar uses of bear arms, both of them in state constitutional provisions protecting the right to bear arms:
(5) [North Carolina, 1776:] That the people have a right to bear arms, for the defence of the State ….
(6) [Massachusetts, 1780:] The people have a right to keep and to bear arms for the common defence ….
The court in Heller said that the North Carolina provision “could plausibly be read to support only a right to bear arms in a militia,” and with regard to the Massachusetts provision it said that “if one gives narrow meaning to the phrase ‘common defense’ this can be thought to limit the right to the bearing of arms in a state-organized military force.” But under those readings, the right to bear arms would amount to “the right to be a soldier or to wage war”—precisely what the court had described earlier in the opinion as an “absurdity.”
The second data point is a statement that was made by Elbridge Gerry during the debate in the House of Representatives on what ultimately became the Second Amendment, and I confess that its significance is uncertain. The initial text (drafted by James Madison) included language providing that “no person religiously scrupulous of bearing arms, shall be compelled to render military service in person,” and Gerry objected to it:
(7) This clause would give an opportunity to the people in power to destroy the constitution itself. They can declare who are those religiously scrupulous, and prevent them from bearing arms.
From the time I first read this statement until a day or two ago, it puzzled me. Why would exempting someone from military service have the effect of excluding them from such service? After all, not being required to do something is different from being forbidden from doing it. But it now occurs to me that perhaps Gerry’s statement was based at least in part on the view of bearing arms as being simultaneously a right and a duty. Maybe it was thought that the right and the duty could exist only in tandem, so that there could be no duty without a corresponding right and no right without a corresponding duty.
As I’ve said, this hypothesis is somewhat speculative, so I don’t want to put too much weight on it. But at the same time, I’m not at all sure that it can be ruled out.
ALL OF THIS EVIDENCE shows that the court in Heller was wrong to argue that it would be absurd to think that the right to bear arms could have been understood to protect a right to serve in the militia.
That conclusion doesn’t depend on accepting the view of history advanced by Cornell and Kozuskanich. There is no contradiction in thinking that an argument or belief is mistaken but nevertheless reasonable (and therefore not absurd). Indeed, to call that view of history unreasonable would itself be mistaken: the view is historiographically respectable, the idea that bearing arms was regarded as both a right and a duty isn’t disputed by gun-rights advocates, and as we’ve seen, evidence supporting the view is found in the contemporaneous linguistic record.
the right of the People to bear arms
If, as I’ve argued, the right to bear arms was understood as a right to serve in the militia, it would have been unlikely that the people, as used in the Second Amendment, would have been understood to refer literally to all Americans. During the colonial, revolutionary, and post-revolutionary periods, membership in the militia did not extend to literally all Americans. Rather, it was limited to males (typically white males) who were able-bodied, within a specified age range, and not exempt from service.
But the Supreme Court said in Heller that the people was used in the Second Amendment to refer to a category of people broader than just those in the militia. It did so in order to interpret the use of the people in the Second Amendment consistently with what it interpreted the people to mean as used in other parts of the Constitution.
And what was that interpretation? It’s not clear, because the opinion described it in at least two different ways. It initially said that in the other provisions, the people “unambiguously refers to all members of the political community, not an unspecified subset.” But in the same paragraph, it quoted an earlier case in which it had interpreted the people to mean the “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.” Those formulations are not necessarily equivalent. And later in the opinion it talked about the Second Amendment protecting the rights of “law-abiding, responsible citizens.” Was that intended as yet another interpretation of the people? Your guess is as good as mine. All we can say is that Heller regards the people as meaning something broader than ‘people in the militia.’
The court’s assumption that the people meant the same thing every time it was used in the Constitution didn’t result in any inconsistency with the court’s interpretation of bear arms, because militia service wasn’t relevant to the interpretation. But if one’s starting point is that the right to bear arms was understood as a right to serve in the militia, interpreting the use of the people in the Second Amendment consistently with its use elsewhere in the Constitution would generate dissonance between the different components of the Second Amendment itself. In this situation, something’s got to give, and I think that what has to give is the presumption of consistent use.
I say that for several reasons, which have to do with both language comprehension generally and legal interpretation.
I’LL BEGIN with the issue relating to comprehension generally, but before addressing the specifics, I think it would be helpful to provide some background as to why considerations relating to the comprehension process are relevant. The mode of originalist analysis in which the court in Heller said it was engaging has as its goal the determination of what the provision at issue would most likely have been understood to mean at the time it was ratified. The factors that will influence that determination will of course include grammar and word meaning, but those aren’t the only relevant factors. Words can typically be used to convey a variety of different meanings, and an essential part of understanding a text or utterance is recognizing which of the possible meanings of each word was intended. That’s a process that plays out below the level of conscious awareness, and it draws on factors beyond what are generally thought of as the rules of grammar. One of those factors has to do has to do with the fact that what a word will be understood to mean in a given context is affected by the context. As you read a text, what you understand each word to mean will depend in part on what you’ve already read.
The issue regarding the interpretation of the people as it is used in the Second Amendment arises from the fact that contextual factors point in different directions. Under the analysis in Heller, the relevant context is the use of the people in provisions other than the Second Amendment. Under my analysis, on the other hand, the relevant context is the text of the Second Amendment itself. (I’ll refer to these two contexts, respectively, as the global context and the local context.) So from the standpoint of language comprehension, the question is which of those contexts would be likely to have had the stronger influence on readers’ understanding of what the people meant in the Second Amendment.
The local context in which the right of the people would have been understood was the Second Amendment’s preamble, which stated that a “well regulated Militia” is “necessary for the security of a free State[.]” The local context therefore focused readers’ attention very specifically on the militia.
The question arises whether this militia-related context could have influenced how the right of the people was understood. That’s a question that the Supreme Court in Heller chose not to answer, on the theory that under the supposedly-applicable rule of legal interpretation, an introductory clause such as the one here plays no role in the interpretation of the “operative clause” (“the right of the people to keep and bear Arms, shall not be infringed”) unless the operative clause is ambiguous.
But that’s a prescriptive rule about how legal interpretation is supposed to proceed, not a descriptive generalization about what the process of language comprehension actually entails. I see no reason to think that the constraint reflected in the legal-interpretive rule plays any role in actual language comprehension.
Among other reasons, such a constraint would be inconsistent with the widely-accepted proposition that language comprehension is generally fast and incremental—when we read something we understand the text or the utterance in real time, with no apparent delay between perception and understanding. The comprehension process doesn’t wait until the end of the sentence to start working. In contrast, the interpretive rule relied on by the court doesn’t kick in until the sentence has been fully read and processed. In order for the rule to be triggered, the comprehender would have to recognize that the preamble is in fact a preamble, and would then have to determine whether the main clause of the sentence is ambiguous. Both of those steps would require conscious deliberation, which isn’t typically part of the normal comprehension process. And because those steps would take place only after the preamble has been read, the reader would need be able to erase their memory of the preamble if the main clause turned out to be unambiguous—an ability that seems rather unlikely.
Therefore, I’ll proceed on the assumption that in trying to figure out how the Second Amendment is likely to have been understood, it’s appropriate to consider the effect of the preamble from the get-go, whether or not the operative clause is otherwise unambiguous. (This is true, by the way, with respect to readers’ understanding, not only of the people, but also of bear arms.)
Given that the preamble always has the potential to influence how the operative clause is understood, the question arises whether the preamble’s focus on the militia could have led readers to understand the people to refer only to militia members. I’ve already shown that the phrase bear arms (and variants such as bearing arms) was strongly associated with militia service and with military service and warfighting more generally; was there similarly an association between militia and an understanding of the people as referring specifically to militia members? Because if so, the use of well-regulated militia in the preamble could have primed readers to understand the right of the people as invoking that understanding.
To try to answer that question, I looked in COFEA and COEME for instances of militia appearing within six words on either side of the people. What I found were a number of uses in which the set of people to which each word referred was coextensive—a result inconsistent with Heller’s broader interpretation.
Several of these examples turn out to have been hiding in plain sight, since they play a major role in the historical narrative advanced by gun-rights advocates. The earliest of these is the following, from the Virginia Declaration of Rights (Section 13; 1776), which was drafted by George Mason and was one of the major inspirations for the Bill of Rights:
(8) That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state [COFEA, evans.N15245; source.]
A decade later, Mason was one of the delegates to the Constitutional Convention, but he refused to sign the document that the Convention proposed, because it did not include any declaration of individual rights. After the Constitution was approved by Congress, Mason served as a delegate to the Virginia convention tasked with deciding whether the Constitution should be ratified. During the debates, he again equated “the militia” with “the people”:
(9) Mr. Chairman, a worthy member has asked who are the militia, if they be not the people of this country, and if we are not to be protected from the fate of the Germans, Prussians, &c., by our representation? I ask, Who are the militia? They consist now of the whole people, except a few public officers. [COFEA, elliots.v3.section16.txt; source.]
When the Virginia convention voted to ratify the Constitution, it also urged the adoption of a set of proposed amendments that Mason had drafted, among which was a provision that would protect the right to keep and bear arms and that referred to the militia as consisting of “the body of the people”:
(10) That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defence of a free state… [COFEA, elliots.v3.section26.txt; source.]
When Congress took up the various proposed amendments, the first draft of what became the Second Amendment was largely based on the Virginia proposal, and like that proposal, it included the language I’ve been focusing on:
(11) 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. [Source.]
The example below is from one of the Anti-Federalist essays that are known collectively as the Letters from a Federal Farmer, which were published in 1787 and 1788 in opposition to the ratification of the (proposed) U.S. Constitution. Although it differs slightly from (8)–(11) in its phrasing, it is identical to them in describing the militia as consisting of “the people.”
(12) A militia, when properly formed, are in fact the people themselves….[T]he militia are the people…. [Source.]
The same conception of the militia is reflected below in (13)–(15), although not as directly expressed as in (8)–(12). In (13)–(15), the first part of the boldfaced text (up to the end of the sentence) expressly refers to the militia, and then “the people” is used in the remainder of the boldfaced text in a way that makes it clear that the writer is using that phrase to refer to the militia:
(13) The irregular and disjointed State of the Militia of this province, makes it necessary for me to inform you, that unless a Law is passed by your Legislature to reduce them to some order, and oblige them to turn out in a different Manner from what they have hitherto done, we shall bring very few into the Feild, and even those few, will render little or no Service. … [Y]our first object should be a well regulated Militia Law. The people, put under good Officers, would … not only render real Service as Soldiers, but would protect, instead of distressing the Inhabitants.
[Letter from George Washington to William Livingston (Jan. 24, 1777) fndrs.washington.03-08-02-0153 (with extended context); source.]
(14) They are making Treason Laws and Militia Laws, &c. The Jersy Government is making a Militia Law too. The People of that State will be all soldiers. They are exasperated, to a great degree, at the Treatment they have received
[Letter from John Adams to Abigail Adams (March 14, 1777), fndrs.adams.04-02-02-0128; source.]
(15) Allow me here to consider, whether a standing army be necessary for the defence and safety of the United States. … In a land of liberty, like ours, it is extremely dangerous, to make a distinct order of the profession of arms—great opportunity is in this way afforded for the overturning of government and the introduction of all the horrors and calamities which attend a revolution; … but besides the danger of a revolution, it is not to be supposed that courage or public spirit will prevail as much among a standing army, as among a militia. An army which consists of the people, and is actuated by the same interests, which consists of men who have certain rights to protect, will act with more spirit than an army composed of men, who neither know, nor think any thing of the cause in which they are engaged—with the same discipline, therefore, they may be supposed to excel standing troops.
[Isaac Watts Crane, A.M. “An oration delivered in the Presbyterian Church, at Elizabeth-town, on the Fourth of July, 1794, at the request of the militia officers, it being the eighteenth anniversary of American independence.” COFEA, evans.N21665 (with extended context); source.]
In (16), below, the pattern is essentially the same as in (13)–(15), except that the order of “militia” and “the people” is reversed.
(16) contributions extorted by the menaces of a French invasion. THE means of national defence should rest in the body of the people. A well organized militia is the only safe bulwark of a free people, competent on all occasions to repel invasion and suppress insurrection. Standing armies are not only expensive but dangerous to the liberties of the state. In republics every citizen should be a soldier.
[George Clinton, Jr., “An oration, delivered on the Fourth of July, 1798, before the General Society of Mechanics and Tradesmen, the Democratic Society, the Tammany Society or Columbian Order, the New York Cooper Society, and a numerous concourse of other citizens.” COFEA, evans.N25292 (with extended context); source.]
The nine uses shown in (8)–(16) aren’t enough to establish that in contexts having to do with the militia the people was ordinarily equated with the militia. However, they do show that as used in the Second Amendment, the people can reasonably be interpreted as referring to the subset of Americans who were eligible to serve in the militia.
Additional evidence for that conclusion can be found in the corpus data for the right of the people and the people have the [or a] right, which I discussed in my first post on bear arms. My focus there was on whether the right that was referred to was a collective right in the sense that it could by its very nature be exercised only by the collective action of a group of people. And as I said there, the data was dominated by uses that I interpreted as being collective. That by itself provides some support for interpreting the people in the Second Amendment as meaning in effect ‘militia-eligible people,’ since serving a militia inherently involves collective action. But more important was the substance of the collective rights, all of which had to do with the relationship between the people and the government. For example:
the right to say who shall be their ruler
the right by a convention, or otherwise, to change the existing government
the right to appoint such officers as they might think necessary
the right to alter the Constitution
the right to alter the government
the right to consult for the common good
the right to depose a bad king and set up a good one
the right to set up a civil government
These rights presumably extended only to white male adults—a category only slightly broader than the category of those eligible for militia service. If that’s correct, it would significantly diminish the significance of the fact that the right to bear arms is described in the Second Amendment as belonging to the People.
But what about the fact that the interpretation I’m arguing for is inconsistent with how (according to Heller) the people is used in other parts of the Constitution, including most importantly in the First Amendment (“the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”)? Would that have any impact on how the people in the Second Amendment would have been understood? I think not. It seems to me very likely that most lexical ambiguities are resolved by the immediate context—“immediate” meaning within the span of 4 or 5 words, and in any case probably within the same sentence.
This isn’t to say that the way a word is used in the broader context will never have an effect, but I would expect that to happen mainly, if not solely, when it is required in order for the word at issue to fit coherently into the broader context. That’s unlikely to be an issue here because the Second Amendment is a relatively autonomous chunk of text rather than part of a connected line of discourse.
WHAT I’VE SAID so far has involved general principles of language comprehension. I want to say a few words now about Heller’s reading of the people from the perspective of legal interpretation. That reading was based (at least implicitly) on what Justice Scalia and Bryan Garner, in their book on legal interpretation, called the presumption of consistent use: “A word or phrase is presumed to bear the same meaning throughout a text….” But as they note, the presumption is not very strong: “More than most other canons, this one assumes a perfection of drafting that, as an empirical matter, is not often achieved…. Because it is so often disregarded, this canon is particularly defeasible by context.”
For the reasons I’ve already discussed, I think that this is a case in which the consistent-use presumption is overcome.
So far I’ve shown that, all other things being equal, it would be reasonable to interpret bear arms as used in the Second Amendment to mean ‘serve in the militia’ and to interpret the people to refer only to those in the militia. A potential complication is raised by the fact that the right protected by the Second Amendment is not simply the right “to bear arms,” but the right “to keep and bear arms.” I will deal with that issue in my next post, and will show that it doesn’t affect my conclusions. So for now, I’ll proceed on the assumption that the Second Amendment protects only the right of the people to bear arms.
The fact that the interpretations I’ve proposed are reasonable means more than simply that the court in Heller should have given them serious consideration. Rather, it provides another piece of evidence that even if the Second Amendment can be interpreted to mean what Heller said it does, it doesn’t unambiguously mean what Heller said it means. That is significant because, as I’ve noted in previous posts, Heller itself says that if the amendment’s operative clause is ambiguous, the preamble may be consulted in order to resolve the ambiguity. Once one does that, the interpretive scale tips decidedly toward reading bear arms in a military sense, and Heller’s interpretation becomes untenable.
But note that even if the right to bear arms is understood as a right to serve in the militia, there would remain the question of what such a right would entail today, given that the kind of militia that was extant during the Founding Era no longer exists, and that the militia’s function has been taken over by a permanent national military—the antithesis of a militia “consisting of the body of the people.” That question would present issues quite different from those that I’ve been discussing, and that I don’t think are relevant to determining how the Second Amendment was likely to have been understood when it was proposed and ratified. Therefore, I’m not going to discuss them here.
I want to close by noting an article that I came across while I was writing up this post. The article, by Yale law professor Akhil Amar, appeared in Heller’s more-or-less immediate aftermath, and it argues in favor of interpreting the Second Amendment as using the people and militia to refer to the same thing:
[T]he otherwise stilted syntax of the Amendment, with its reference to the “militia” in the opening and the “people” in the closing, makes the most sense and becomes the least stilted when we read these two key nouns, “militia” and “people,” as synonyms. Here is the key linkage between the Amendment’s two parts. In eighteenth-century republican ideology, the (general) militia were the people. Indeed, an earlier version of the Amendment made this implicit syntactical equation textually explicit by referring to “a well regulated militia, composed of the body of the people.” Although this extra verbiage clarified the Amendment’s substance, it clunked up the style of an already grammatically complicated sentence and eventually got dropped. Even so, the equation of the militia with the people is implicit in the very syntax and flow of the final Amendment as a whole when read against its background of eighteenth-century republican ideology.
Cross-posted on Language Log.