Up in Arms

The massacre of children at a Connecticut elementary school by a deranged young man using an assault weapon riveted the attention of Americans on a subject that they never leave alone for very long, and that their legislators have found no endurable solution for: finding a balance between the protection of the putative right to own guns, and the protection of life, liberty, and happiness that is threatened by the very people who own those guns. The challenge is to craft laws that will adequately protect the public while remaining consistent with the second amendment of the US Constitution, which is now specifically interpreted to mean that individuals have a right to possess a firearm for traditionally legal purposes, such as self-defense.

A 2008 Supreme Court case, District of Columbia v. Heller, is the cornerstone on which this interpretation of the amendment rests, and the arguments put forward in the majority opinion in this case are very specific about language and definitions. Here is a pertinent excerpt:

Before addressing the verbs keep and bear, we interpret their object: Arms. The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity. Thus, the most natural reading of "keep Arms" in the Second Amendment is to "have weapons." At the time of the founding, as now, to "bear" meant to "carry." In numerous instances, "bear arms" was unambiguously used to refer to the carrying of weapons outside of an organized militia. . . 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. Every example given by petitioners' amici for the idiomatic meaning of "bear arms" from the founding period either includes the preposition "against" or is not clearly idiomatic. In any event, the meaning of "bear arms" that petitioners and Justice Stevens propose is not even the (sometimes) idiomatic meaning. Rather, they manufacture a hybrid definition, whereby "bear arms" connotes the actual carrying of arms (and therefore is not really an idiom) but only in the service of an organized militia. No dictionary has ever adopted that definition, and we have been apprised of no source that indicates that it carried that meaning at the time of the founding. Worse still, the phrase "keep and bear Arms" would be incoherent. The word "Arms" would have two different meanings at once: "weapons" (as the object of "keep") and (as the object of "bear") one-half of an idiom. It would be rather like saying "He filled and kicked the bucket" to mean "He filled the bucket and died."

This unusually detailed analysis about the historical meaning of words, in which the minority justices are accused of resorting to zeugma to make their point, was written by Justice Antonin Scalia. He is known for his close attention to linguistic matters. Scalia is identified as a textualist (one who believes that a statute's ordinary meaning should govern its interpretation) and an originalist (one who holds that interpretation of law should be based on what reasonable persons contemporaneous with the law thought it meant). This position can be arduous to defend because of the lack of facilities that would ensure it against doubt and dispute: namely, mind-reading combined with time travel. Our only access to the minds of the Founding Fathers and the milieu in which they thought and lived is their language. Here are a few things you can find by poking around the language that survives from the time when the US Constitution and its amendments were committed to paper.

Two collections of writings that bear on this investigation are the Federalist Papers (essays promoting the ratification of the United States Constitution by the then inchoate United States) and the Anti-Federalist Papers (papers written in opposition to ratification of the Constitution). Both collections of papers are available online and searchable.

The term "arms" (always plural) does in fact come up repeatedly in the Federalist Papers: 14 times in all, a couple of times denoting human appendages, but usually with reference to weapons of war and weapons carried by soldiers. Here are some typical examples:

At present I mean only to consider it as it respects security
for the preservation of peace and tranquillity, as well as against
dangers from foreign arms and influence, as from dangers of the like
kind arising from domestic causes.

Carthage, though a commercial republic, was the aggressor in the
very war that ended in her destruction. Hannibal had carried her
arms into the heart of Italy and to the gates of Rome . . .

To oblige the great body of the yeomanry, and of the other classes
of the citizens, to be under arms for the purpose of going through
military exercises and evolutions . . .

To these would be opposed a militia amounting to near half a million of
citizens with arms in their hands, officered by men chosen from
among themselves, fighting for their common liberties, and united
and conducted by governments possessing their affections and
confidence.

Words that designate a single, portable weapon, such as gun, musket, flintlock, pistol, rifle, and firearm, do not appear in the Federalist Papers. Neither do the words owner or ownership appear in the Federalist Papers, although these words are both central in the debate that is going on today concerning people and guns.

The Anti-Federalist Papers, written anonymously by then prominent opponents of the Federalists, favored a decentralized, minimalist United States, in which any form of central government would have severely limited powers, with states that were largely self-governing. The Anti-Federalists were even opposed to the establishment of a national standing army. Here are some quotes from their writings.

They [the newly formed Congress] well know the impolicy of putting or keeping arms in the hands of a nervous people, at a distance from the seat of a government, upon whom they mean to exercise the powers granted in that government.

The European governments are almost all of them framed, and administered with a view to arms, and war, as that in which their chief glory consists.

At the distant appearance of danger to these [the natural and unalienable rights of men], we took up arms in the late Revolution.

The Anti-Federalist Papers also do not mention guns, rifles, or firearms, owner, or ownership. That notwithstanding, if you read through some of the amici briefs supporting Heller in District of Columbia v. Heller, you will find that many writers there also take the unusual license of purporting to know exactly what the Founding Fathers were thinking and talking about.

What were the Founding Fathers, and their peers and detractors, thinking and talking about? This is a question that is also on the mind of my VT colleague Dennis Baron in a recent blog post. (He co-authored the "Linguists' Brief" that Scalia references in his opinion.) It seems a stretch, given their centrally important writings, to posit that they had already settled the matter of keeping arms as it is being debated today since their writings do not reflect that they addressed the subject in any way that resembles the context of the current debate.

It seems impossible now to remove the constitutional question from the issue of gun control. What would the debate be like if it were discussed simply as a present and pressing problem, without reference to the weighty authority imposed by the imagined thoughts of the estimable but long-dead Founding Fathers? It's unsettling that the current debate so much resembles a pattern that can be discerned in other contemporary debates: take a canonical and sacrosanct text, insist on a particular reading of a part of it as the only intended and true interpretation, and then use the perceived authority of the text as a weapon to diminish the views of those who disagree with you.