By David E. Young
Three professors of linguistics believe that the lower court's Parker decision overturning DC's handgun ban misinterpreted the historical meaning of the Amendment's language. They have, therefore, filed a brief before the U.S. Supreme Court in the Heller case, which is an appeal of the Parker decision. The linguistics professors assert that there is "unmistakably military language employed throughout the Second Amendment". This statement is not historically correct. The professors provide no evidence that "free state", "the right of the people", or "shall not be infringed", for example, are employed in an unmistakably military sense. In fact, the linguists do not delve into this language because their brief does not deal with the Second Amendment in its proper Bill of Rights context, a context that all of the Second Amendment's language is inextricably related to. Not even once do the linguists note the Second Amendment's bill of rights predecessors are such, nor do they compare the Second Amendment's language to that used within the proposed bills of rights from the last four ratifying conventions and the eight existing Revolutionary Era state bills of rights. What the linguists do, in effect, is tear the Second Amendment completely out of its actual Bill of Rights context and treat it as just any sentence. They select "well regulated militia" and "bear arms" from within it, interpret these terms with a government controlled military only meaning, and constantly compare them to non-bill of rights usage to determine meaning. The professors do all of the foregoing while failing to ever note that the language used in the Second Amendment was actually taken from limits on the state governments found in the state bills of rights.
According to the professors of linguistics, the difference between the militia referenced in the original Constitution and the militia referenced in the Second Amendment is the participial adjective “well regulated.” Begging pardon, but there is a lot more difference than just that. The "well regulated militia" mentioned in the Bill of Rights is being secured against misconstruction and abuse of government powers, a point made by the First Congress itself. Conversely, the militia in Article I, Section 8 is entirely under the government's control in the military powers given to the government. The one piece of absolutely essential information that would clarify this point, one that the linguists fail to present, is a definition for the term "militia" as universally understood during the Founding Era. The linguists rely on historical sources when it suits their purpose. Thus, making use of their own source to determine the meaning of "militia" should not be controversial. Alexander Hamilton described the militia in The Federalist #29 in three separate instances as follows: the great body of the citizens, the people at large, and the whole nation. Another much more significant period Bill of Rights actor, George Mason, who actually developed the two-clause original of the Second Amendment in the Virginia Ratifying Convention as part of a complete model Bill of Rights for the Constitution, described the militia as consisting of "the whole people".
Obviously, the militia and the people were understood during the Founding Era as somewhat synonymous and for very good reason. While babies, younger children, and females were never considered as militia, all the free able-bodied men were clearly among those the term referred to. The slave population does not enter into this discussion of militia because slaves were generally prevented from possessing arms. If slaves possessed their own arms and knew how to use them, it would not have been possible to keep them in bondage. The term "militia" was basically understood as a reference to the natural defensive strength of the community. The militia as seen through the Founders' eyes consisted of all the free able-bodied males. A clear understanding of this simple fact makes the language of the Second Amendment much more easily understood. The reason why the right to keep and bear arms is guaranteed to the people against government violation is to assure that the militia, the able-bodied males, would always have access to their own arms even if the government did not provide for arming the government's organized militia. However, none of this common period understanding of "militia" can be gleaned from the linguists amicus brief because they never define the term as understood by the Founders.
In contrast to their treatment of the term "militia" itself, where no definition is provided, the professors of linguistics spend considerable time addressing the "well regulated militia" terminology of the Second Amendment. The linguists start by providing an accurate period definition of "well regulated" in conjunction with "militia" that relies on a period source. They point out Hamilton's usage in The Federalist #29 indicating that "well regulated" used in conjunction with "militia" described a characteristic of the militia that is based on their perfection or proficiency. Thus, "well regulated" in conjunction with "militia" means the militia are effective, efficient, or proficient. Hamilton's usage makes it perfectly clear that "well regulated" does NOT mean regulated by the government or under government regulation. It refers to a characteristic inherent in the militia themselves (the people at large, the great body of the citizens, the whole nation) who constitute a capable or effective militia. A disarmed populace could not logically be described as an effective militia.
However, the linguists quickly veer away from Hamilton's actual usage of "well regulated militia", just as they never relied in the first place upon his understanding of "militia" as the people at large, the great body of the citizens, and the whole nation. Instead, they embrace an understanding of "well regulated militia" that is founded on the militia being regularly trained and disciplined as well as organized under the law. In other words, the linguists accept that the "well regulated militia" of the Second Amendment means a militia regulated under the government's laws. But the Second Amendment in the Bill of Rights, part of the U.S. Constitution, is not one of the government's laws, it is the supreme law of the land, and constitutes a regulation of the government by the people who authorized the Constitution. If "well regulated militia" is going to be misinterpreted as meaning "regulated" by ignoring Hamilton's period usage, let us at least make it clear who is regulating whom. In the Constitution and Bill of Rights, the people are regulating the government.
There are numerous clearly stated Founding Era references to "well regulated militia" that not only appear in prior American bill of rights usage, but that are, in fact, the very sources for the Second Amendment's terms and language. In the ratifying convention proposed bills of rights adopted by Virginia, North Carolina, New York, and later Rhode Island, a "well regulated militia" is defined in EVERY case as either composed of or including "the body of the people". The direct predecessor for all of these provisions, Virginia's Revolutionary Era 1776 Bill of Rights provision, also defines a well regulated militia as composed of the body of the people. The professors of linguistics completely ignore the Second Amendment's Bill of Rights context and overlook all of this prior directly related bill of rights usage. At the same time, they claim that only men organized under militia laws were intended by the Second Amendment's "well regulated militia" language. The linguists actually substitute their own view that well regulated means a militia regulated under law and ignore their own source indicating that it relates to an inherent characteristic of the militia themselves.
According to the linguistics professors, the word “arms” at the time of the Second Amendment’s adoption had an overwhelmingly military meaning. They rely on this definition for the term "arms" taken from Samuel Johnson's 1755 Dictionary: “1. weapons of offence, or armour of defence. . . . 2. A state of hostility. . . . 3. War in general". This definition was universal at the time as cited in several dictionaries. The linguists' conclusion is that an entirely military meaning must be applied to the term "arms" in the Second Amendment. However, their conclusion is contradicted by actual period American usage of "arms" in bill of rights related contexts. Common American Founding Era bill of rights related usage was not necessarily consistent with dictionary definitions. This is the case because the earlier dictionaries the linguists relied upon preceded American bill of rights usage limiting government, and because later dictionaries did not take such usage into consideration any more than the linguists have.
At the time of the Second Amendment's adoption, the term "arms" clearly had a more extensive meaning in an American Bill of Rights context than acknowledged by the linguists. As an example, in direct response to James Madison's June 1789 introduction to Congress of the amendments that became the U.S. Bill of Rights, Samuel Nasson wrote his congressman from Massachusetts in support of a bill of rights for the Constitution. Nasson had been an Antifederalist leader in the Massachusetts Ratifying Convention the previous year. There, he had supported a bill of rights including Samuel Adams' proposed provision denying the new government any authority to "prevent the people of the United States, who are peaceable citizens, from keeping their own arms." [OSA260] Nasson's 1789 bill of rights related letter described "the right to keep arms for Common and Extraordinary Occasions such as to secure ourselves against the wild Beast and also to amuse us by fowling and for our Defence against a Common Enemy." [OSA797] The term "arms" is used twice by Nasson in one bill of rights related sentence in relation to clearly non-military purposes. These two specified purposes are obviously some of the "common" ones for the people keeping their own arms in Nasson's view. It is also clear from subsequent remarks in his letter that Nasson understood the common possession and use of arms was a major factor assuring that the people would be able to function effectively for "defence" on "extraordinary occasions". That is why he supported protection for the right of the people to keep arms in a bill of rights against violation of that right by the government. Nasson's bill of rights related use of "arms" is not in any sense limited to military purposes.
Here are two other bill of rights examples of period "arms" related language that indicate the term does not have an exclusively military meaning in an American bill of rights context. The first is that from the Pennsylvania Minority proposed Bill of Rights. The Minority took the existing Pennsylvania State Declaration of Rights language, which stated, "That the people have a right to bear arms for the defence of themselves and the state", and expanded it to, "That the people have a right to bear arms for the defence of themselves and their own state, or the United States, or for the purpose of killing game; and 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;" [OSA160] Virginia Federalist Alexander White, later a delegate to the Virginia Ratifying Convention and representative in the First Congress, publicly responded to the Pennsylvania Minority by paraphrasing their provision as protection for "the rights of bearing arms for defence, or for killing game". [OSA281] "Arms" is not used in either of these bill of rights related examples as military language because in both instances clearly non-military usage is specified. The term "arms" is clearly used to refer to all types of arms.
To back up their unmistakably military language claim, the linguists select and provide extensive discussion about the overwhelmingly military nature of the "bear arms" terminology. A definition of "bear" presented by the linguists and taken from the Oxford English Dictionary is "To carry about with one, or wear . . . weapons of offence or defence". However, the linguists do not accept this straightforward definition as that intended in the Second Amendment. That "bear" combined with "arms" terminology was intended to mean something so simple as to carry or to use arms is ignored in favor of an exclusively military understanding. The linguists decide that "bear arms" as used together in the Second Amendment must be taken as an idiom meaning, "to serve as a soldier, do military service, fight", a definition also taken from the OED. If one were to directly insert their accepted definitions in place of "bear arms" in the Second Amendment's restrictive clause, here are the results:
"the right of the people to keep and to serve as a soldier shall not be infringed."
"the right of the people to keep and do military service shall not be infringed."
"the right of the people to keep and fight shall not be infringed."
None of these examples make any sense. Even if "arms" is inserted after "keep" in the above examples to save them from senselessness, they still make no sense in their actual bill of rights context. Why? Because there is no logical reason whatsoever why serving as a soldier or doing military service under law would need to be protected against the government in a Bill of Rights provision. The government is intended to have control over the military, and that is why it is given such control in Article 1, Section 8 of the Constitution. Of course the linguists do not concern themselves with Bill of Rights context or with making sense out of a Bill of Rights provision. Their only concern is advancing a purely military context for the Second Amendment's terminology.
Next, the linguists argue that the circuit courts of appeals in their Parker and Emerson decisions misinterpreted "bear arms" language. These courts cited "bear arms" usage that appeared in eleven different 1776 through 1835 state bill of rights provisions. Countering with their own historical usage, the linguists cite 1609 through 1897 examples, NONE of which are from an American bill of rights, to prove that "bear arms" in the Second Amendment is an idiom meaning military service. These comparisons result in completely illogical and somewhat humorous inconsistencies. The professors caution that the 1817 to 1835 state bills of rights language cited by the courts, which can only be taken as relating to private self defense, is from well after the time the Second Amendment was adopted. However, their cautionary observation applies with greater force to their own much later Theodore Roosevelt example, which is not even a bill of rights provision. Also, the linguists' 1609 example from Scotland is not a bill of rights provision, while all of the state examples cited in the Parker and Emerson decisions are American and are taken directly from state bills of rights. As if it actually clarifies the issue, the professors include two instances in their brief of Americans being seized, taken aboard British warships, and forced to "bear arms against" a country. The professors seem to equate the right to bear arms with being compelled by government to bear arms. Clearly, the professors have gone so far down the wrong path regarding "bear arms" having a compulsory military service meaning that they do not comprehend exactly how far they have gotten off track regarding this Bill of Rights provision.
In their treatment of the state bills of rights provisions cited in the Parker and Emerson decisions, the linguists contrast the "bear arms" usage of the Second Amendment and that in the eleven cited state bill of rights provisions. This is how the linguists separate and attempt to distinguish the terminology and intent of the Second Amendment from the very government limiting provisions that its terminology was actually based upon. They note that there are added terms such as "for the defence of themselves", or, "for the defence of himself" in the court cited usage that is not found in the Second Amendment itself. They argue that "bear arms" has the military idiom meaning unless terms such as those quoted are added to it, thus bending or breaking the military idiom. What the linguists conveniently overlook here is the bill of rights context and the language always found in such context that has been completely ignored by them. All of the court cited provisions as well as the Second Amendment have added language indicating that "bear arms" is a right of the people or the citizens. In a bill of rights context limiting government, something which is uniquely American and which first came into existence during the Revolutionary and Founding Eras, adding right of the people or citizens to "bear arms" clearly breaks the idiom that the linguists insist upon. A right of the people or citizens has nothing whatsoever to do with being compelled to perform military service.
A major reason why the linguists insist that "bear arms" must be viewed as their stated military idiom is because of the "well regulated militia" language of the first clause. Before having gone into their examination of terminology described above, the linguists decided that the Second Amendment intent, taken as a whole, was to protect a well regulated militia. This is another case where some of the language in the Second Amendment, just like "the right of the people" terminology of the second clause, was completely ignored by the linguists. The Second Amendment protects a right of the people and assures a well regulated militia for a clearly specified goal. That goal is the security of a free state. This is more essential American bill of rights terminology that is simply set aside by the linguists as if it were unimportant. The linguists, merely by making the statement that the phrase “well regulated Militia” is overtly military, removed it completely from its Bill of Rights context. Here is why they are incorrect.
Going back to the linguists' cited Founder, Alexander Hamilton in The Federalist #29, it is evident that, during the Founding Era when the term "militia" was used and less than all the free able-bodied men were being referred to, the term "select" was added to the term "militia" to signify such meaning. Hamilton preferred to rely on select corps of militia rather than all of the militia (the people at large, the great body of the citizens, the whole nation). Hamilton used "select corps" to refer to militia units composed of selected men as opposed to all the able-bodied men. Since the term "select" is not used in the Second Amendment's first clause, the actual period usage indicates the well regulated militia reference is to all the able-bodied men, not to a portion of the men who happen to be authorized by law.
If the professors of linguistics had actually examined the eight state bills of rights that preceded the Second Amendment, they would have noticed something which is true in EVERY one of them. It is the fact that the Second Amendment related predecessor in each is always the first clause or article in a set of three. These three part constructions have been dubbed as "Mason Triads" in The Founders' View of the Right to Bear Arms, my recently published definitive history of the Second Amendment. This appellation is in honor of George Mason, the author of the first state bill of rights in 1776. Every subsequent Revolutionary Era state bill of rights copied Mason's 1776 Virginia Declaration of Rights by including a Mason Triad. However, the leading Second Amendment related clause in each may contain either a well regulated militia reference like Mason's, or a right of the people to bear arms reference like Pennsylvania's. These never both occur together. The Mason Triads clearly indicated that an armed populace capable of defense was being described, that standing armies were dangerous to liberty, and that the military were to be under control of the civil power, a reference to the just described armed civil population. The militia (the people at large, the great body of the citizens, the whole nation) only become soldiers when called out into service during an actual emergency. At all other times they are civilians. The armed populace is the civil power the Mason Triads referred to in their last part, and the first part describes that armed populace as a well regulated militia or as having a right to bear arms.
Taking all of the above historical facts into consideration, and noting the evident shortcomings of the linguists' military only non-Bill of Rights context approach, the Second Amendment becomes much more clear. Its purpose is preserving the free state that the American armed populace established during the Revolution and Founding Era. A well regulated militia, meaning an effective militia consisting of the body of the people, is necessary for this purpose according to the Constitution. By guaranteeing the possession and use of arms to the people for everyday legitimate purposes against government infringement, the people are in a position to function as an effective defensive force in favor of their rights and constitutional government if that ever becomes necessary. Contrary to the professional linguists seriously flawed amicus, it is abundantly clear based on the actual historical meaning of the Second Amendment's language that the amendment was intended to protect the rights of individuals to possess and use arms.
For further info, contact deyoung1@chartermi.net
This page last updated: May 12, 2008