Heller Commentary, Post 2: “Keep and Bear Arms”

This is part 2 of a chain of posts concerning the Supreme Court’s decision in District of Columbia v. Heller. [Part I, Part II, Part III, Part IV]

Operative Clause: Keep and Bear Arms

The Court next turned to the meaning of “keep and bear Arms.” In its brief, DC had attempted to assign an exclusively military meaning to this phrase. When the Amendment was adopted, the District had urged, “Arms” referred distinctly to “military weapons.” To “bear Arms” meant not to carry arms, but to “us[e] weapons in a military context.” And the inclusion of the word “keep” did nothing to undercut its military reading, for “the expectation of the Framers was that members of militias would bring the weapons required for service.” Brief for Petitioners, 15-17.

At first glance, this reading seems plausible enough. But it cannot withstand scrutiny, and the Court convincingly disposed of it. See slip op., 7-18.

The District’s assertion that “Arms” were “military weapons” was especially weak. Samuel Johnson’s Dictionary of the English Language defined “arms” as “Weapons of offence, or armour of defence.” Likewise, Noah Webster’s famous 1828 American Dictionary of the English Language gave as the primary definition of “arms,” “Weapons of offense, or armor for defense and protection of the body.” There was little basis for the District’s narrower definition.

But what about “bear Arms”? Certainly, to convey or carry was a core definition of the term “bear.” But might the words “bear Arms,” taken together, have had a distinctly military meaning? DC had maintained that the most natural meaning of “bear Arms” in the Second Amendment was “using weapons in a military context.” This idiomatic sense of the phrase “was the only sense in which the young Congress and its predecessors ever used the phrase,” and “[f]or decades after the adoption of the Second Amendment, the military sense of ‘bear arms’ was ‘overwhelmingly dominant.’ ” Brief for Petitioners, 16.

“Bear arms” did indeed have an idiomatic, military meaning in the framing era. But unfortunately for DC, that meaning was not the one they had ascribed to it. Rather, “bear arms” could idiomatically mean to serve as a soldier or wage war. That idiomatic sense wouldn’t do; as the Court said, “[g]iving ‘bear Arms’ its idiomatic meaning would cause the protected right to consist of the right to be a soldier or to wage war—an absurdity that no commentator has ever endorsed.” Slip op., 13.

Instead, DC had urged that “bear arms” meant to “carry arms” (its non-idiomatic meaning), but only as part of some form of military service. Brief for Petitioners, 19. As the Court pointed out, however, no evidence from the framing era even hinted at such a meaning. The phrase “bear arms” was often used in a military context, to be sure; but that’s worlds apart from having an inherent military connotation. And in any case, the Court found numerous framing-era examples of “bear arms” being used in a clearly non-military sense. Slip op., 13-15. (For more on this point, see the paper of Cramer and Olson, What Did “Bear Arms” Mean in the Second Amendment?, available at SSRN.)

Unfortunately, the Court—evidently not content to rely on the literal meaning, “carry arms”—chose to put its own gloss on the phrase “bear Arms”: “When used with ‘arms,’ . . . the term [‘bear’] has a meaning that refers to carrying for a particular purpose—confrontation.” Slip op., 10. On this point, the Court cited a dissenting opinion by Justice Ginsburg, which had in turn cited the sixth edition (1998) of Black’s Law Dictionary. Yet insofar as the Court was trying to pin down the original import of the Second Amendment, it had to cite some framing-era authority saying much the same thing. It did not.

It’s unclear just why Justice Scalia made this move (or agreed, in any event, to include it in his opinion for the Court). Perhaps he felt it put a Second Amendment right of self-defense on sounder footing. But being sheer ipse dixit, the claim was unconvincing.

Nonetheless, the District’s reading of “bear Arms” was fragile. What, moreover, was to be made of the phrase “keep . . . Arms”? Surely it had no distinct, military meaning. DC had maintained that the inclusion of the word “keep” was entirely consistent with its military reading, for (to quote the Brief for Petitioners again) “the expectation of the Framers was that members of militias would bring the weapons required for service.” And “[t]he District does not contend that individuals may not ‘keep’ their ‘Arms,’ but that they may keep them only if they have a militia-related reason for doing so.” Brief for Petitioners, 16-17, 19.

But how, precisely, was the (supposed) military limitation of “bear arms” to be transposed onto the phrase “keep arms”? The District had offered no solution to this puzzle. The various ratification-era militia statutes it had pointed to—using the phrase with respect to militia duty (Brief for Petitioners, 17)—showed only that “keep arms” could be used in a military context (a fact no one ever doubted). They hardly demonstrated that “keep arms” had a military connotation; such an argument was (in the Court’s words) “rather like saying that, since there are many statutes that authorize aggrieved employees to ‘file complaints’ with federal agencies, the phrase ‘file complaints’ has an employment-related connotation.” Slip op., 9.

Justice Stevens, echoing the District of Columbia, insisted that “keep and bear arms” “perfectly describes the responsibilities of a framing-era militia member.” Perhaps, but that in no way demonstrates that “keep arms” has, or can have, an intrinsically military meaning. Stevens found it significant, however, that “the clause protects only one right, rather than two. It does not describe a right ‘to keep arms’ and a separate right ‘to bear arms.’ Rather, the single right that it does describe is both a duty and a right to have arms available and ready for military service, and to use them for military purposes when necessary.” Slip. op., 16.

This argument was strained. One did not have to look any further than the First Amendment to find multiple guarantees preceded by a sole instance of the word “right” (singular): “Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” (The Court also cited the Pa. Declaration of Rights §§IX, XII, XVI, and the Ohio Constitution of 1802, Art. VIII, §§11, 19. Slip. op., 18.) Justice Stevens attempted to salvage his argument by noting that “[i]n contrast to the language quoted by the Court, the Second Amendment does not protect a ‘right to keep and to bear arms,’ but rather a ‘right to keep and bear arms.'” Slip. op., n13. But he did not explain why the mere inclusion of the word “to” should affect the analysis.

Most devastatingly, it appears the phrase “keep and bear arms” was itself used in non-military contexts. Court, slip. op., 18. The District stood on shaky ground, indeed.

Meaning of the Operative Clause

Putting all of the words together, the Court concluded that “the right of the people to keep and bear arms” extends to the possession and carrying of weapons “in case of confrontation.” It found “strong[] confirm[ation]” of this view, moreover, in English and American history. Slip op., 19-22. But what about the prefatory clause? As the Court said, “[l]ogic demands that there be a link between the stated purpose and the command.” Slip. op., 4. Accordingly, the Court moved on to a brief examination of the prefatory clause (slip. op., 22-25), and of its relationship to the operative clause (slip. op, 25-27).

For the next post in this chain, click here.

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