Professor says Scalia was wrong about bearing arms

• Posted on 24 May 2018
• By Write Winger
• 0

But at the end of the day, as the author begrudgingly had to admit, Heller is binding

I just read the greatest opinion piece from the Washington Compost entitled “Antonin Scalia was wrong about the meaning of ‘bear arms’”.

In it, the author, Dennis Baron, professor of English and linguistics at University of Illinois at Urbana-Champaign, challenges Scalia’s assertion in Heller about the original meaning of the term “bear arms” in an apparent effort to delegitimize the justification for applying the Second Amendment right to the individual in favor of a collective right to be regulated by government due to “bearing arms” being a military term:

By Scalia’s logic, the natural meaning of “bear arms” is simply to carry a weapon and has nothing to do with armies. He explained in his opinion: “Although [‘bear arms’] implies that the carrying of the weapon is for the purpose of ‘offensive or defensive action,’ it in no way connotes participation in a structured military organization. From our review of founding-era sources, we conclude that this natural meaning was also the meaning that ‘bear arms’ had in the 18th century. In numerous instances, ‘bear arms’ was unambiguously used to refer to the carrying of weapons outside of an organized militia.”

But Scalia was wrong. 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.

He goes on to cite a search of texts and words used during the Founding Era and Early Modern English to prove his theory.

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.

He continues:

But we shouldn’t need big data to tell us this. “Bear arms” has never worked comfortably with the language of personal self-defense, hunting or target practice. Writing about the Second Amendment in 1995, historian Garry Wills put it succinctly: “One does not bear arms against a rabbit.”

Obviously, the author has never gotten over the fact that the Heller and McDonald decisions protect an individual’s right to arms, still trying to prove and convey that the Second Amendment was a collective right meant to “give” government the power to allow people employed by the government or with government permission the ability to own and use government approved guns for government authorized purposes (i.e. military service and action), which is an interesting interpretation given the purpose of the Constitution and Bill of Rights, but I’ll touch on that later. But even more interesting is that if what the author is stating is true, if bearing arms is only for military purposes, then the Second Amendment clearly protects military weapons of war, weapons certain courts are trying to say fall outside 2A protections.

For the purpose of this article, I’ll agree with his findings that Scalia was wrong in his interpretation of “bear arms”, but not his conclusions. If the author would like to focus on language though by pointing out that nobody has ever said that they’ve “borne arms” against rabbits (unless you discount King Arthur’s use of the Holy Hand Grenade against such a rabbit), that it’s just “not how we talk”, how is it then that anyone can interpret “the right of the people to keep arms” to mean the people collectively have a right to keep arms but no individual does? That’s not how we talk either, because it doesn’t make any sense. It’s like saying the people have a right to collectively petition the government for a redress of grievances, but no individual has the right to send a congressman a letter. Or the people have a right to keep iPhones, but an individual doesn’t (that kind of decision would undoubtedly cause people to band together, forgive prior political differences, and overthrow the government).

If then, linguistically, the right to keep arms applies to an individual, and bear arms implies a military purpose, how about this interpretation of Second Amendment protections: the right of the people to “keep” arms (meaning to have the ability to personally acquire, transfer, possess, and own military weapons) and “bear” arms (meaning to band together as an organized militia and shoot foreign invaders or our own government if it becomes tyrannical with those military weapons) shall not be infringed.

Actually, this is probably the most accurate interpretation of the Second Amendment ever written if I do say so myself. I’d like to acquire my select fire suppressed sbr now, and to open carry with my fellow militia in case an immediate defensive or offensive action is required (maybe the author should also search the term “militia”). And let’s be honest, one guy running out his front door wearing a chest rig and dual wielding ARs isn’t going to do much against invaders or tyrants without organized help. But you also can’t come together to fight collectively without armed individuals, nor do you need government or Constitutional “permission” to do so, as there was no Second Amendment when the Colonists exercised their right to “bear arms” against British soldiers at Lexington and Concord.

Then there’s this juicy nugget from the WaPo’s linguistic Constitutional Scholar:

According to Scalia, the framers ‘undoubtedly thought’ the amendment protected the universal right of self-defense, even though nowhere does the Constitution mention self-defense.

One of my biggest pet peeves is people who believe we only have rights the Constitution “gives us” or “allows us to have”, rights that are limited to those written down and that are then open to be interpreted, restricted, or limited by government. Sorry, that’s not how any of this works.

The natural right of self defense doesn’t need special recognition; that’s what the 9th Amendment is clearly supposed to protect - rights not spelled out in the Bill of Rights. Just so you don’t think I’m making this stuff up like Scalia apparently did by applying self defense to the 2nd, I give you the 9th Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Unenumerated rights are a touchy subject with the courts, if not ignored completely. We know how Scalia felt about such things too - if the Privileges or Immunities Clause of the 14th Amendment is the “darling of the professoriate”, the 9th must be her hotter red-headed libertarian sister. Apparently, though, the unenumerated right to self defense isn’t the Ginger of this particular professor.

You have the right to own and carry weapons for your own personal defense whether the Constitution or any court says you can or can’t. While this author clearly doesn’t like the way “bear arms” was interpreted, and he may very well be right, the government can’t deny a right or liberty simply because it isn’t written down. And what a decision it would have been for the Supreme Court to say you have no right to armed self defense because the Constitution doesn’t specifically “give” you that right. The Constitution doesn’t grant rights anyway.

The Constitution wasn’t written to be interpreted by courts to limit the rights or liberties of the people; it was written to limit government through delegation of powers, and to protect preexisting rights - to tell the government, “this is all you’re allowed to do, nothing more, and leave the people the hell alone.” While it may have failed at its job, upheld only by the flimsy promise of the very people it was supposed to protect us from, it’s purpose is nevertheless valid.

But at the end of the day, as the author begrudgingly had to admit, Heller is binding (he did have to interject “for now”, believing statists who think like him can still deny the right or overturn the decision someday). At least he can sit with his fellow professors and they can tell each other how right they were all along about decisions they disagree with.

I would, however, like this author to go back to that database and search the term “keep arms”, though he’ll probably find something about storing them in a government owned and operated armory. Statists gonna state.