In D.C. v. Heller (2008), the Supreme Court recognized an individual right under the Second Amendment “to keep and bear arms” within one’s home. In its upcoming term, the Court is slated to determine whether the Constitution protects a right to bear arms for self-defense outside of the home. Perhaps, like other rights secured by the Constitution, the right to bear arms may be limited in the face of certain governmental interests. But before that analysis can take place, it is essential to know what the underlying right is. And because the meaning of our natural rights does not change over time, we must determine what the right to bear arms meant when the Second Amendment was ratified in order to understand what it means today.
To discover the original meaning and application of the phrase “bear arms” at the time of its ratification, research must begin with the contemporary writings of the Founders. But relatively few such documents include the phrase “bear arms” or its derivatives, and even fewer mention the right of the people to bear arms at all.
Of those that do, one contains the original twelve proposed amendments to the Constitution, including the Second Amendment exactly as ratified. A few others, including an early draft of the Bill of Rights and the ratifying conventions of Rhode Island, New York, North Carolina, and Virginia mention the need for a well-regulated militia, but in a separate clause following a declaration of the right to keep and bear arms. The state constitution of Massachusetts declares that “the people have a right to keep and to bear arms for the common defence,” while Pennsylvania and Vermont guarantee the people’s “right to bear arms for the defence of themselves and the state.” In his bill to form the District of Columbia, Thomas Jefferson secured “the right of the people to keep and bear arms” with no other qualifiers or reference to a militia.
None of these does much to define “bear arms,” except to signify that the right is not inherently attached to the existence of a well-regulated militia. Furthermore, Pennsylvania and Vermont articulate “the right to bear arms” within a context of self-defense, and Heller explains that Massachusetts’s “common defence” language does not bar the use of arms for individual purposes. In Blackstone’s Commentaries, George Tucker further connected the right to bear arms with self-defense, adding that “the right of self-defense is the first law of nature” and that the right of the people to keep and bear arms “may be considered the true palladium of liberty.”
Identifying a right to bear arms in self-defense, however, is not precisely the same as an individual right to bear arms outside of the home for self-defense. Without more guidance on the phrase “bear arms” from our Founders, we will have to expand our search terms to words synonymous with “bear” during the late 18th Century.
In Heller, Justice Scalia explained, “At the time of the founding, as now, to ‘bear’ meant to ‘carry,’” and that “when used with ‘arms,’ however, the term has a meaning that refers to carrying for a particular purpose—confrontation.” Citing Justice Ginsburg’s definition of “carries a firearm” in her dissent in Muscarello v. United States (1998), Justice Scalia noted that “[s]urely a most familiar meaning is, as the Constitution’s Second Amendment . . . indicate[s]: ‘wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.’” Justice Scalia added, “Although the phrase 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.” In particular, Justice Scalia pointed to the “state constitutional protections for the right to bear arms enacted immediately after 1789,” namely that at least seven states “unequivocally protected an individual citizen’s right to self-defense.”
With this understanding in mind, we can identify words of the Founders that fit the Supreme Court’s definition of “bear arms”—to wear, bear, or carry—for a deeper sense of the scope of the right.
Some examples include Jefferson’s declaration that “the Constitution of most of our states (and of the United States) assert . . . that it is [the people’s] right and duty to be at all times armed”; Patrick Henry’s resolution that “the great object is that every man be armed”; and Tench Coxe’s explanation that in order to defend against tyrannical civil rulers, “the people are confirmed by the article in their right to keep and bear their private arms.” Harrison Gray Otis noted that both the law of nature and laws of nations “authorize the right of carrying arms for self defence.” Finally, quoting Cesare Beccaria, Jefferson dubbed as “false ideas of utility” those laws “which forbid to wear arms, disarming those only who are not disposed to commit the crime which the laws mean to prevent. . . . Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.”
From these passages and the Court’s definitions, the right to bear arms appears to encompass a private, individual right to wear, bear, or carry a firearm at all times on one’s person, in their clothing, or in a pocket for the purpose of self-defense, preventing homicide and other assaults, and tyranny by civil rulers.