J. L. BELL is a Massachusetts writer who specializes in (among other things) the start of the American Revolution in and around Boston. He is particularly interested in the experiences of children in 1765-75. He has published scholarly papers and popular articles for both children and adults. He was consultant for an episode of History Detectives, and contributed to a display at Minute Man National Historic Park.

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Thursday, June 07, 2018

What the Founding Era Meant by “Bear Arms”

Last month Dennis Baron, a professor of English and linguistics at University of Illinois at Urbana-Champaign, published an op-ed essay in the Washington Post on the language of the Second Amendment to the U.S. Constitution:
Two new databases of English writing from the founding era confirm that “bear arms” is a military term. Non-military uses of “bear arms” are not just rare—they’re almost nonexistent.

A search of Brigham Young University’s new online Corpus of Founding Era American English, with more than 95,000 texts and 138 million words, yields 281 instances of the phrase “bear arms.” BYU’s Corpus of Early Modern English, with 40,000 texts and close to 1.3 billion words, shows 1,572 instances of the phrase. Subtracting about 350 duplicate matches, that leaves about 1,500 separate occurrences of “bear arms” in the 17th and 18th centuries, and only a handful don’t refer to war, soldiering or organized, armed action. These databases confirm that the natural meaning of “bear arms” in the framers’ day was military.
Lawyer Neal Goldfarb checked more variations of the phrase in the same databases and came to the same basic conclusion.

In the 2008 Heller case, as everyone involved in this discussion knows, the U.S. Supreme Court decided otherwise. Writing for the court, Justice Antonin Scalia treated “bear ams” not as an idiom with a military meaning but as a general phrase about carrying weapons.

The data shows otherwise—hardly anyone in the eighteenth century used it as Scalia did. As with the Reynolds case I wrote about here, the court’s finding is simply at odds with historical facts. The Heller ruling overturned legal understandings that prevailed for most of the twentieth century and changed the law going forward, but such rulings can’t change the actual past.

The Second Amendment reflects the Founding generation’s faith in the militia system of community self-defense that they had all grown up with. It said nothing about private ownership of firearms to hunt, to protect one’s home or person, or to make loud noises. Perhaps they viewed those activities as falling under the Tenth Amendment. We can’t know because the Tenth is so vague.

That said, the idea of a militia in the Founders’ time depended on widespread ownership of firearms by the (mostly white) men who made up the militia. Even if we go back to reading “bear arms” to refer only to military activity, as the Founders no doubt understood it, they still envisioned a public self-defense system in which most white men owned muskets, trained regularly with those muskets, and knew which officers to turn out for while carrying those muskets.

I think the big question of the Second Amendment lies in its opening premise: “A well regulated Militia, being necessary to the security of a free State.” We no longer have a militia system that the Framers would recognize. Instead, we have a large standing army with advanced weaponry, many of those troops deployed overseas—a situation that would startle the Founders, if not alarm them. If the premise of the Second Amendment no longer applies, what does that mean for the conclusion?

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