The History of the 2nd Amendment: A Collective or Individual Right? - Part 3
A three-part series analyzing and refuting historical evidence produced by gun rights activist Kostas Moros on the right to "bear arms"
By: Dru Stevenson
In this Epilogue to our three-part series, Dru Stevenson investigates some of the key terms in the legendarily brief Second Amendment, and the fallacy of relying on texts from over 200 years ago.
Epilogue
The text of the Second Amendment of the United States Constitution is brief. It provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
As Justice Stevens explained in his dissenting opinion in District of Columbia v. Heller, 2008:
“The preamble to the Second Amendment makes three important points. It identifies the preservation of the militia as the Amendment’s purpose; it explains that the militia is necessary to the security of a free State; and it recognizes that the militia must be ‘well regulated.’ In all three respects it is comparable to provisions in several State Declarations of Rights that were adopted roughly contemporaneously with the Declaration of Independence (Heller at 640-41).”
Two states — Pennsylvania and Vermont — did indeed mention hunting or self-defense in their Declarations of Rights, which makes it all the more striking that the text of the Second Amendment itself does not mention the use of firearms for hunting or personal self-defense. The drafters had the texts of the various state formulations before them, and no one in Congress suggested adopting the special provisions from Pennsylvania and Vermont.
“Bear Arms” was a phrase in the Founding era that usually had military connotations. The phrase normally means “to serve as a soldier, do military service, fight.” 1 Oxford English Dictionary 634 (2d ed. 1989).
As a group of Linguistics Professors explained in their amicus brief to the Supreme Court in Heller, the phrase “bear arms” originally comes from the Latin arma ferre, which means “to bear [ferre] war equipment [arma]” (Brief for Professors of Linguistics and English as Amici Curiae, p. 19). Samuel Johnson’s Dictionary of the English Language, published in 1755 and widely used at the time the Bill of Rights was drafted, defines “arms” as “[w]eapons of offence, or armour of defence.”
Another reference book from the time, Trusler’s The Distinction Between Words Esteemed Synonymous in the English Language, said, “[b]y arms, we understand those instruments of offense generally made use of in war; such as firearms, swords, &c. By weapons, we more particularly mean instruments of other kinds (exclusive of firearms), made use of as offensive, on special occasions.”
Various academic articles and amicus briefs in recent years have analyzed the phrase “bear arms” from a corpus linguistics approach — searching a huge database of thousands of texts from the Founding era to see how “bear arms” was used at the time.
It was normally in sentences discussing the militia or armies, not typically in sentences or paragraphs talking about personal gun ownership or personal self-defense. (See, e.g., Neal Goldfarb, Regarding the Strength of the Corpus Evidence (and Noting Issues that the Evidence Doesn’t Resolve.)
As Professor Karen Sullivan wrote in her article about “being” clauses in 2018, the use of the phrase “being necessary for” after mentioning the militia, according to writing conventions of the time, would most likely mean, “Infringement is prohibited only as required by the necessity of “a well regulated Militia…to the security of a free State.”
In other words, use of the militia clause with the phrase “being necessary for” meant that the “right to bear arms” applied only in situations where the militia would be rendered inoperabale.
See also Kari Sullivan, The ‘Strange’ Syntax of the Second Amendment (2021).
Despite gun rights activist Kostas Moros’ often misinterpreted proof for “individual rights” — often taken from 200-year old texts, as laid out in Part 2 of this series — the current U.S. Supreme Court has leaned into similar notions.
Right or wrong (I think they are wrong), the Supreme Court’s decisions in Heller and Bruen now control the outcome of Second Amendment litigation, and the Court’s view will continue to control until the personnel on the Court changes significantly. In one sense, this is good news for gun rights advocates. They have already “won” this issue in the courts, even if they have not convinced most history professors.
Even though the current Supreme Court has embraced “public meaning originalism” — which relies heavily on early American jurists and legal writers — many prominent Constitutional Law scholars and jurists (such as Adrian Vermeule or retired Circuit Court Judge Richard A. Posner) do not give any credence to this approach.
The Founding Fathers were well aware that they could not control the generations that followed them. Hence they built into the Constitution a process for amending it. The First Congress discussed the fact that courts in future generations could interpret the words of the Bill of Rights in ways that most of the Founding generation would not have liked. From the standpoint of legal realism, Founding-era sources matter only because we choose to rely on them, but there is nothing to stop us from choosing something else, like policies tailored for a modern society.
For many legal scholars and judges, early American legal sources are as irrelevant as the Founder’s outdated beliefs that women and racial minorities should not vote, that slavery was acceptable, that dueling was a reasonable way for adults to settle disputes, or that whale oil would be the primary fuel source in an industrialized economy.
Dru Stevenson is Wayne Fischer Research Professor, Professor of Law at South Texas College of Law.
Image by Mark Thomas from Pixabay.
So given that Kostas Moros has been able to look over all 3 articles in Dru Stevenson’s series, I want to provide some concluding thoughts.
Here are each of Moros’ main responses:
Part 1: https://twitter.com/MorosKostas/status/1686496760800346113
Part 2: https://twitter.com/MorosKostas/status/1686810935271542784
Part 3: https://twitter.com/MorosKostas/status/1687158935009263616
The main thing that became clear after reading Moros’ responses is that he is playing by a different set of rules than those typically used in reasonable discussions of history, law, and logic more broadly.
The central question driving this discussion is whether “… the right of the people to keep and bear arms shall not be infringed” refers to a militia-based right, an individual right based on self-defense, or both (with both being a victory of an individual right). Keep in mind that this is NOT a discussion over whether an individual right can be found in natural law or common law. There is a well understood individual right under natural and common law, and that right falls under the social contract and can be regulated by the government, though the scope and boundaries of such a right is an open and ongoing question. That is entirely different from a constitutional right that would prohibit such regulations on such an individual right, despite Moros’ consistent attempts to muddy the waters between natural, constitutional, and common law.
How Stevenson and I approach the question is straightforward: What is the historical context of those words, and what did they mean at the time? It is somewhat amusing that Moros admits that “textualism is so important,” but then only applies such an analysis to the words “well-regulated.” Ironically, this also seems to be the only time Moros acknowledges that a first half of the 2A even exists, but more on that in a bit.
As an aside, the idea that well-supplied and well-disciplined doesn’t require government restrictions/regulations (in the modern sense of the word) is just deeply unserious. You had registries of who was in the militia, you had inspections, you had drilling, you had ammo and weapon storage regulations, you had major oversight on who precisely was allowed/required to serve, you had at least attempts at standardization to ensure proper logistics. The idea that all of that happened without government interference/restrictions is bizarrely ahistorical. And yes, that mostly happened at the state level because that was what the 2A was about according to the collective/militia view, keeping the federal government from interfering with state militias.
Anyways, back to the straightforward approach. For what words meant at the time, I agree that textualism is important, and when applied to the 2A in full it annihilates Moros’ claims. While “infringe” could mean the same thing as “abridge,” there was a distinction between them in legal language. There is a lot of historical work done on this that provides massive evidence Madison was using this as legal language (particularly as he uses “abridge” elsewhere in the constitution). Moros only offers a single dictionary source for common language use, which is not remotely serious when compared with the substantial evidence professional historians have compiled (there is literally an entire book on the topic of “infringe” as Stevenson provides in his first article).
Then take “keep and bear arms.” Moros’ response here is especially weak, which to be fair really isn’t his fault given how ahistorical and badly thought through Scalia’s opinion was on the topic. There was a substantial amount of evidence at the time that bear arms was used almost exclusively in a military context, and there was no substantive reason to believe the word “keep” changed that. Apparently Moros has never heard of an arsenal, where a military/military unit can store weapons and munitions. The evidence since DC v Heller has turned substantial into overwhelming. Multiple studies conducted using corpus linguistics has decisively refuted the idea that bear arms at the time would have meant anything other than using arms in the military (while there are isolated examples of it being used outside of a military context, they are exceptionally rare relative to the military context). Finally, “the people” can be both used to refer to the body politic, or individuals depending on the surrounding context. And even if it refers to individuals, as pointed out previously all that means is a militia is made up of individuals, and that simple fact does not automatically constitute an individual right.
And what is the surrounding context around the 2A? The first half of the 2A is purely and unmistakably about militias. The entire discussion and debate surrounding the 2A was about militia service. You would expect that just once, even out of random chance, that personal self-defense would’ve arisen in the Congressional debates. But instead, not a word. Congress had the chance to take up a directly individual right, but didn’t even give it a hearing. And even most of Moros sources are talking about a militia. A straightforward approach yields little support for his interpretation.
In contrast, Moros uses a circular approach. Moros claims that “to keep and bear arms” is “obviously” about an individual right. He then does a word search through google books for historical documents that mention “people” along with “bear arms.” Given that in Moros’ view that “to keep and bear arms” is “obviously” an individual right, these documents are seen as providing evidence to the individual rights view. Note that none of the documents actually state that “people” and “bear arms” actually means an individual right; they just have those words in them (often with a bunch of discussion about the militia). Then when pressed to provide historical evidence for the 2A being an individual right, he cites the long list of documents that have the words “people” and “bear arms,” thus closing the loop. If however the text of the 2A isn’t actually obvious, and “bear arms” does not mean what he thinks it means, his entire argument collapses on itself.
Moros’ entire argument hinges on “to keep and bear arms” clearly referring to an individual right. When one actually looks at the surrounding context and historical data of the 2A, the wording “to keep and bear arms” becomes at the very least neutral with respect to collective vs individual and dependent on context (and that’s being quite generous). That context in the majority of Moros’ cited documents leaves no potential for an individual rights interpretation, and instead strongly supports the collective view. In other words, the moment you poke Moros’ evidentiary circle, the entire argument collapses.