What Does It Mean To Bear Arms?
BY Herschel Smith
8 years, 8 months ago
In “What Did “Bear Arms” Mean in the Second Amendment?” Clayton E. Cramer and Joseph Edward Olson provide solid historical context proving that the phrase was used repeatedly when referring to non-military individuals possessing weapons.
“Those who argue that the original meaning of the Second Amendment was only to protect a collective right, either of the states to maintain militias, or perhaps of citizens to jointly form militias, assert that “bear arms” refers exclusively or at least overwhelmingly, to the collective, military carrying of weapons,” they write. “If ‘bear arms’ referred only to the military carrying or use of arms, then the right protected by the Second Amendment would not be an individual right to possess or carry arms for personal self-defense. The right would be for a government organized militia, or at best, to exercise what the Tennessee Supreme Court acknowledged was a right to revolution.”
While pointing out that historical documents written at the time of the Second Amendment referenced by many scholars generally used the phrase “bear arms” to refer to military uses, Cramer and Olson say that this is due to a bias selection problem.
“Searching more comprehensive collections of English language works published before 1820 shows that there are a number of uses that are clearly individual, and have nothing to do with military service. Some of these uses are by authors and in contexts that give special weight to an individual rights understanding.”
Among their historical evidence is a law written in England during the reign of King Henry VIII making it unlawful for any Welsh resident to “bring or bear, or cause to be brought or borne to the same Sessions or Court, or to any place within the distance of two Miles from the same Sessions or Court, nor to any Town, Church, Fair, Market, or other Congregation . . . nor in the Highways in affray of the King’s Peace, or the King’s liege People, any Bill, Long-bow, Cross-bow, Hand-gun, Sword, Staff, Dagger, Halberd, Morespike, Spear, or any other manner of Weapon . . . .”
“The specific problem that the statute sought to correct was not even Welsh rebellion,” Cramer and Olson write, “but simple criminal actions interfering with the operation of the courts.”
Another English statue intended to disarm Scottish Highlanders also uses the term “bear arms” in referring to requirements for amnesty (emphasis added).
That from and after the time of affixing any such summons as aforesaid, no person or persons residing within the bounds therein mentioned, shall be sued or prosecuted for his or their having, or having had, bearing, or having borne arms at any time before the several days to be prefixed or limited by summons as aforesaid, for the respective persons and districts to deliver up their arms. . . .
This is a good essay. While I do not ever advocate deference to international law or precedent, not even from our own English heritage, it is quite useful to understand the common usage of words and common practices of the times that led to the documents to which we are all supposed to live.
One can also see the nibbling around the edges of gun control, even in these words above, with the worst of it being gun control as a catalyst for the American war of independence. Our forefathers fought against the notion of the divine right of kings and for the idea of covenant as seen in the light of continental Calvinism.
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On March 9, 2016 at 8:52 am, Frank_in_Spokane said:
” … I do not ever advocate deference to international law or precedent, not even from our own English heritage … ”
Yup. As good as our law tradition is, it us ONLY good where it is rooted in God’s law. Wherever it deviates, tyrrany ensues. Exhibit A: The Statist presuppositions behind eminent domain. (See Jezebel, Ahab and Naboth.)
On March 9, 2016 at 11:17 am, gyrwan said:
“Those who argue that the original meaning of the Second Amendment was only to protect a collective right, …”
I will now pretend as though Locke’s conception of the origin of rights had some bearing on U.S. law.
There is no such thing as a collective right. IF rights originate as Locke suggested, there CANNOT be any such thing. No further argument is needed to dismiss the argument cited above, ….. IF rights originate as Locke described.
If rights do not originate as Locke says; then, … all bets are off.
One doesn’t have to look too far back into history to figure out that some precedents are followed, and other precedents ignored — even precedents “set-in-stone” like, say, the U.S. Constitution and Bill of Rights. An in-depth search of history and legal precedent misses the point. Either Locke was right, or Locke was wrong.
When convenient, Global Warmists will claim that “Climate is not weather”. Well, what else is “climate”? What could it possibly be, other than the sum of weather over time?
A collective right can, likewise, ONLY be the sum of individual rights.
Even if protection/enforcement of a right was given to the collective (i.e., government) acting as an agent, in consideration for individuals foregoing the protection/enforcement of rights on their own; that permission and agreement can be revoked at any time by the individuals who, in the first place, invested the agency with their authority. It is inalienable.
The idea that somehow a group of people can have a right that none of its constituent members actually posess, is madness. It is the equivalent of showing up to McDonald’s with no money and, recognizing that they won’t give you your Big Mac for free, waiting for five or six of your equally penniless friends to show up, … at which point (even though not one of you has any money) you will collectively be able to afford a Big Mac for each of you.
Selection of historical precedents, biased or not, ain’t in it. A little understanding of what rights are goes a long way, and can prevent delving down various legalistic rabbit-holes for answers that will never really hold water.
On March 9, 2016 at 11:29 am, Herschel Smith said:
But make sure you understand the points I made above. I argued against deference to things other than the U.S. constitution. But it does pay to understand common usage of words. Language, as philosopher Gordon Clark argues, is words as tags or pointers to thoughts. That’s how man can communicate thoughts to other men. They tag their thoughts with things that mean the same thing to others. Otherwise, language is illogical gibberish and nonsense.
So the point was not that their arguments of collective rights are worthy of our attention, but that common usage of the day was that bearing arms meant individually.
Otherwise, I concur wholeheartedly with everything you said. You made good points, quite obviously.
On March 9, 2016 at 7:58 pm, gyrwan said:
Maybe I belabored the point about “collective rights”. But the larger point I was making was about the nature & origin of rights. Like you say, tagging ideas with words. While you concentrate on the meaning of the right “to bear arms”, you could just as easily be concentrating on the right to “bear arms”:
https://akiaeiecs.files.wordpress.com/2012/09/secondamendmenttherighttobeararms2.jpg
If you don’t know what a “right” is, or why it’s a “right”; then the wording after “a right to:” becomes meaningless. To know these things, you MUST defer to something other than the U.S. Constitution or Bill of Rights. Rights pre-exist them. Whether or not something is a right is not determined by its usage in precedent, in law, in literature, or in language.
IF the drafters of the Bill of Rights, as well as the States and citizens who ratified it, had intended that it refer only to the “collective, military carrying of weapons”; would that be it, then? End of story. No individual “right” there.
Who are we trying to convince here? And what are we trying to convince them of? That “bearing” (i.e., “carrying”, “holding”, “wearing”) weapons is a right because the Constitution says so? Because that was the original intent?
To what end? Are you trying to persuade those who have already jettisoned any adherence to The DoI, the Constitution, and the BoR? Those who have evidenced time and again that original intent is a fart in the wind; that precedent is only precedent if they follow it; and, that they will say what your rights are and are not? Those whose “tags” of thoughts and ideas are a forever-shifting labyrinth of non-definitions used differentially depending on the circumstances?
Or, are you saying that individuals have a right to bear (i.e., “carry”) arms granted to them by nature and nature’s God?
The former is a fool’s errand, and the latter has no need of reference to English common usage in the 18th century or earlier (or, for that matter, to the U.S. Constitution or Bill of Rights).
On March 10, 2016 at 10:17 am, madoradataman said:
Interesting discussion (… and for the record, I agree with the right of self defense and all thereunto pertaining as a God given or natural right.
… but, as Billy Clinton and others might quip — What does is mean? ;-)
On March 10, 2016 at 10:51 am, Herschel Smith said:
Well, I think you’ve been with me for a while now, and you know as well as anyone that I don’t care much about the second amendment and ensconce my rights squarely in the Holy Scriptures.
That said, it’s important to know what we can about that document around which our people are covenanted to live together. Another way of saying it is that I am discussing a 50,000 foot view, rather than digging into the roots of my rights.
When the inevitable comes … and we all know that one day it will … we need to have made the case that the government and many of its people broke covenant with other of its citizens, thus invoking the curses of breaking the covenant.
It would be rather like a woman making the case before her Christian friends that she is divorcing her husband because of continuing, unrepentant infidelity, but that she doesn’t have proof of this. She just wants to leave him and its the best she can come up with at the moment (judges have taken guns away from spouses for just such baseless allegations). That’s not good enough. There needs to be evidence. The evidence is there for all to see in the case we are building that there was a covenant, and that covenant was broken by one of the parties. Broken covenants are serious things to man and to God.
On March 10, 2016 at 4:25 pm, Fred said:
“Broken covenants are serious things to man and to God.”
Amen.