The Meaning of "Bear Arms"

The Meaning of "Bear Arms"

One of the major contributions that I made to the Heller case was demonstrating that the term "bear arms" was widely used in non-military contexts. And I am pleased to see this exchange in the oral arguments, starting at page 36, between the justices and Solicitor General Clement uses a number of the examples that I found:

JUSTICE SOUTER: But wait a minute. You're not saying that if somebody goes hunting deer he is bearing arms, or are you?

GENERAL CLEMENT: I would say that and so would Madison and so would Jefferson, I would submit. They use --

JUSTICE SOUTER: Somebody going out to -- in the eighteenth century, someone going out to hunt a deer would have thought of themselves as bearing arms? I mean, is that the way they talk?

GENERAL CLEMENT: Well, I will grant you this, that "bear arms" in its unmodified form is most naturally understood to have a military context. But I think the burden of the argument on the other side is to make it have an exclusively military context. And as a number of the briefs have pointed out, that's not borne out by the framing sources.

In one place, although it's not bearing arms, it's bearing a gun, I think it's highly relevant that Madison and Jefferson with respect to this hunting bill that Jefferson wrote and Madison proposed, specifically used in the hunting context the phrase "bear a gun," and so I do think in that context --

JUSTICE SOUTER: But it's "arms" that has the kind of the military -- the martial connotation, I would have thought.

JUSTICE SCALIA: Wasn't -- wasn't it the case that the banning of arms on the part of the Scottish highlanders and of Catholics in England used the term, forbade them to "bear arms"? It didn't mean that could just not join militias; it meant they couldn't carry arms.

GENERAL CLEMENT: And again, I think various phrases were, were used. I also think that some of the disarmament provisions specifically used the word "keep." And so I think there is some independent meaning there, which is one point.

And then I do think that, even in the context of bearing arms, I will grant you that "arms" has a military connotation and I think Miller would certainly support that, but I don't think it's an exclusively military connotation.

I am also pleased to see Chief Justice Roberts prepared to remind everyone that the differing standards of review really aren't historical (p. 44):

CHIEF JUSTICE ROBERTS: Well, these various phrases under the different standards that are proposed, "compelling interest," "significant interest," "narrowly tailored," none of them appear in the Constitution; and I wonder why in this case we have to articulate an all-encompassing standard. Isn't it enough to determine the scope of the existing right that the amendment refers to, look at the various regulations that were available at the time, including you can't take the gun to the marketplace and all that, and determine how these -- how this restriction and the scope of this right looks in relation to those?

I'm not sure why we have to articulate some very intricate standard. I mean, these standards that apply in the First Amendment just kind of developed over the years as sort of baggage that the First Amendment picked up. But I don't know why when we are starting afresh, we would try to articulate a whole standard that would apply in every case?

UPDATE: Yahoo! One of the discoveries that I made ended up in Gura's response to Justice Breyer's attempt to use the 1786 Boston fire safety ordinance as a justification for a ban today:

JUSTICE BREYER: Why -- now, when say "keep" and "bear," I mean you are -- I think you're on to something here. Because you say let's use our common sense and see what would be the equivalent today. Fine.

If we know that at the time, in 1789, Massachusetts had a law that said you cannot keep loaded firearms in the house, right, and you have to keep all of the bullets and everything and all of the powder upstairs, why did they have that law? To stop fires because it's dangerous? They didn't have fire departments. Now we do -- or they weren't as good.

We now have police departments, and the crime wave might be said similar to what were fires then. And, therefore, applying the similar kind of thing, you say: Fine, just as you could keep pistols loaded but not -- not loaded. You had to keep powder upstairs because of the risk of fire. So today, roughly, you can say no handguns in the city because of the risk of crime.

Things change. But we give in both instances, then and now, leeway to the city and States to work out what's reasonable in light of their problems. Would that be a way of approaching it?

MR. GURA: The legislature has a great deal of leeway in regulating firearms. There is no dispute about that. However, I wouldn't draw a complete analogy between the Boston fire ordinances that Your Honor notes and the functional firearms ban.

First, even the Boston firearms ordinances did not include handguns actually. At the time the word "firearm" was not understood to include pistols. General Gage's inventory of weapons seized from the Americans in Boston included some 1800 or so firearms and then 634 pistols. Nowhere in the Boston code do we see a prohibition on keeping loaded pistols in the home. And certainly the idea that -- that self-defense is a harm is one that is --