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Appendix A
Potowmack Institute, amicus curiae (1)
US v. Emerson, Fifth Circuit, Case No. 99-10331

[This study is original historical research and analysis
prepared for the Fifth Circuit in US v. Emerson,]

RESETTING THE TERMS OF DEBATE ON THE

SECOND AMENDMENT:

NEW LIGHT ON THE ORIGINAL MEANING OF THE PHRASE

"TO BEAR ARMS" BASED ON 300 HISTORICAL USES

OF THE TERM IN A MILITARY CONTEXT

IN EARLY AMERICA, 1618-1791

John Kenneth Rowland (2)

[Footnotes are in ().
Texts for footnotes 22-174 are omitted.
Tables are omitted.]

[Excerpts from Rowland's PhD dissertation in history, Ohio State University, 1978, are provided at .../1197row.html. The title is: "Origins of the Second Amendment: The Creation of the Constitutional Rights of Militia and of Keeping and Bearing Arms."]

Deconstruction of the Second Amendment.
Militia-Based Approach.
Need for a Comprehensive Analysis of Usage of the "Bear Arms" Expression.
"Bear Arms" as Standard 18th Century Legal Terminology for Military Service.

OVERVIEW OF ANALYSIS OF 300 "BEAR ARMS" AND 200 OTHER ARMS-RELATED EXPRESSIONS
Sources.

FIGURATIVE AND LITERAL USAGE:THEORY AND PRACTICE
Figurative v. Literal Usage.
Other Rhetorical Devices.
Use of Figurative Language in the 18th Century.
Implications for the Second Amendment.

FIGURATIVE AND LITERAL LANGUAGE IN 200 ARMS-RELATED EXPRESSIONS.
Categories of Arms-Related Expressions.
The Military Context of the 17th and 18th Centuries.
Examples of Figurative Usage.
Figurative Expressions of Military Service.
Figurative Expressions for Military Power and authority.

USES AND USAGE PATTERNS OF "BEAR ARMS":CATEGORIZING AND ANALYZING 300 EXAMPLES.
Chronological Distribution of "Bear Arms" Expressions.
Overview of Categories.
Conscientious Objections to "Bearing Arms."
Capability and Obligation to "Bear Arms."
The Fact of "Bearing Arms."
Miscellaneous Uses of "Bear Arms."
Right to "Bear Arms."

17th AND 18th-CENTURY DEFINITIONS OF "BEAR ARMS"."
Explicit Military Definitions of "Bear Arms" Contained in Militia Acts.
"Bearing Arms" in Naval Service.
"Carry Arms" as a Synonym for "Bear Arms."
"Bear Arms" as a Synonym for "Carry Arms."."

QUESTION OF EXCLUSIVELY MILITARY USAGE OF "BEAR ARMS"
Use of "Carry Arms" and Other Literal Terms to Emphasize Specific Actions.
Literal Prohibitory Language in Relation to Men Outside the Militia.
Literal Prohibitory Language in Hunting Acts.

CONCLUSION, "BEAR ARMS" WAS AN UNAMBIGUOUS MILITARY CONCEPT.
Summary.
Implications for Resetting the Terms of Debate on the Second Amendment.

NOTES.


Considerable debate has raged over the years concerning the original meaning and understanding of the Second Amendment in the 18th century and the implications of that meaning and understanding for today. Arguments over the original meaning have generally polarized between authors who emphasize the "militia" phrase of the amendment as the determining interpretive factor and those who argue that the "keep and bear arms" phrase represents a non-military or at least not an exclusively military guarantee separate from the remainder of the amendment. (3) Despite the considerable amount of work that has been put into this effort, "the debate, in its present terms," according to L. A. Powe in 1997, "seems stagnant and stylized." (4) Moreover, as Robert Cottrol and Raymond Diamond noted two years earlier, "the phrase 'to bear arms' is ambiguous," although some legal scholars argue that the meaning is settled. (5) In part, this situation is a result of little newhistorical evidence being introduced and analyzed by legal scholars, (6) who tend to depend on the same limited body of sources. In general, academic historians have avoided the topic. (7) Those who have written on the amendment have presented a significant body of additional evidence, (8) but it does not specifically address the meaning of "bear arms" and it has not been incorporated into the flow of debate. (9) In fact, analysis of that expression is not a primary objective of scholarly writing even though the original meaning of the language of the amendment carries great weight and the titles of the majority of works on the Second Amendment contain the "bear arms" phrase. As a result, the debate has become stagnant, in Powe's words, and it is time to expand the historical base and face up to the implications of that evidence.

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Deconstruction of the Second Amendment. Compounding the differences between the two approaches to the Second Amendment is the practice of deconstructing its language, of stripping specific words ("keep," "bear," "arms," and "militia") from their 18th century phraseology (especially "keep arms" and "bear arms") and examining their individual meanings in a literal sense, sometimes explicitly but often as an unexamined or buried assumption. Steven Halbrook is the most forthright in his definition of "bear arms." He argues that "the terms, 'bear arms' meant simply to carry arms," but this conclusion is based on very little 18th century evidence (10) and without any recognition that "the terms" could have been a single term used in the 18th century in a figurative sense that would give an entirely different understanding of the Second Amendment. Some academic historians have also assumed an equivalence between "bear" and "carry" arms, which serves only to confuse the issue. (11) Writers taking this approach ignore, or are not familiar with, the authoritative conclusions of the Oxford English Dictionary on Historical Principles, which declares that "to bear arms" is a figurative usage meaning "to serve as a soldier, do military service, fight" (12) and that "to bear arms against" means "to be engaged in hostilities with." (13) Therefore, to insist on a literal "plain reading" of the text of the Second Amendment despite specific evidence to the contrary is a form of constitutional literalism that, however legitimate for extrapolation of the meaning of provisions of the Constitution and Bill of Rights for today, may do an injustice to the 18th century meaning of those same provisions. (14)

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Militia-Based Approach. Authors who emphasize a militia-based approach to the Second Amendment, on the other hand, also accept the figurative meaning of "bear arms" but often as an unexamined assumption with little or no explicit analysis of how the phrase was used in the 18th century. Some historians, like Irving Brant, a biographer of James Madison and an interpreter of the Bill of Rights, unequivocally concluded, "As the wording [of the Second Amendment] reveals, this article relates entirely to the militia— a fact that was made even clearer by a clause dropped from Madison's original wording: 'but no person religiously scrupulous of bearing arms should be compelled to render military service in person.'" (15) Lawrence Cress came to the same conclusion based on his work on the military in early America and the Second Amendment although he, like Brant, does not analyze the term. (16) Other authors have examined the colonial and early state sources more explicitly. J. Smith, in a thesis at the Harvard Law School, examined the body of colonial militia laws and concluded that "bear arms" represented military service and stood in sharp contrast to non-military usage of "carry arms." (17) My own work on the origins of the Second Amendment was based on the figurative meaning of "bear arms," validated by its usage in the colonial period, especially in the militia acts. (18)

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Need for a Comprehensive Analysis of Usage of the "Bear Arms" Expression. As a result, this dichotomizing and deconstructing of the amendment and lack of any comprehensive look at how "bear arms" was actually used in early America (especially if it was used in a figurative sense) has led to endless controversy and an unclear picture of the language— and overall meaning— of the Second Amendment. Only by looking at a large number of 17th and 18th century examples can a pattern or multiple patterns of usage be found that might reveal the base meaning of the phrase and, therefore, its significance as a defining factor in the Second Amendment. The smaller the number of historical examples used, the more likely that misinterpretation can occur. (19) The greater the extent of deconstructing the amendment from its 18th century phraseology, the more likely it is to lose the sense of the forest by emphasizing the individual trees. Moreover, when authors then extrapolate from the component words, and use 19th century definitions, the products of their work do not inspire confidence that they have reached the 18th century understanding of either the words or their parent expressions. Consequently, a more comprehensive survey of colonial and revolutionary American usage of the key phrase, "bear arms," and other arms-related expressions is necessary to come to terms with how the language of the Second Amendment was understood in the late 18th century, both to the drafters and the ratifiers of the amendment.

The latter point needs some explanation. No single analysis can deal adequately with how both the legislators and the general public understood the "bear arms" language of the Second Amendment and its state predecessors. By far the majority of surviving sources that might reveal opinion and understanding reflect the literate, educated classes, not the majority of the population. However, because historians of the American Revolution have been successful in finding ways to view the history of the "inarticulate," (20) it might be feasible to undertake such an investigation about how the "bear arms" expression was used in the 1770s and 1780s by people who were outside the formal constitutional debate. It is possible that popular usage diverged from that of the framers, drafters, and ratifiers, especially as a result of the turmoil of the Revolutionary War. However, it is unlikely that such an endeavor would conclusively arrive at a different answer from what is presented in this article as the meaning of the words of the Second Amendment as understood by its authors. (21)

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"Bear Arms" as Standard 18th Century Legal Terminology for Military Service. Determining how the specific language of the Second Amendment and its related constitutional guarantees in the state bills of rights was used in the 18th century is an absolutely critical dimension of any analysis of the amendment, both its historical base and its continuing significance for the 21st century. Assuming too much about 18th century words and linguistic usage based on and extrapolating backwards from 19th or 20th century values and word use is inadequate to discover what an earlier generation or generations understood.

In the end, this article demonstrates that the "bear arms" phrase represented standard legal terminology and that it was used primarily in a figurative or sometimes elliptical sense, rarely in a literal sense, and that it functioned as a mild euphemism for warfare, violence, and military service. The disguising of specific references to military actions or avoidance of direct unambiguous references suggests that the Oxford English Dictionary's conclusion that "bear arms" was a figurative usage is appropriate and accurate.

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OVERVIEW OF ANALYSIS OF 300 "BEAR ARMS" AND

200 OTHER ARMS-RELATED EXPRESSIONS

In order to determine which of these interpretive approaches accurately represents the original understanding of the "bear arms" formulation, this study examines "bear arms" and other arms-related phrases in two groups. (1) over 300 examples of "bear arms" from the colonial and revolutionary periods are analyzed to determine how the phrase was used— whether in a military or non-military or mixed context— and what their significance was in public and private discourse. For purposes of analysis, this evidence is divided into three chronological periods to determine if there was change over time, trends in usage, or other significant factors. The 300 uses are divided approximately evenly among the periods.

1609-1773 Colonial Period

1774-1786 Revolutionary War, State Bill of Rights Period

1787-1791 Constitution and Federal Bill of Rights Period

(2) In addition, over 200 other expressions using the word "arms" are presented in order to demonstrate how the word and associated phrases were used and to provide the overall context for how "bear arms" was used.

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Sources. These expressions come from a variety of sources, especially official documents related to legislation and governance. A very high proportion comes directly from colonial militia acts, which were the primary legislation dealing with firearms.(22) Some colonies used the "bear arms" phrase extensively in militia legislation, sometimes appearing three or more times in slightly different contexts. Others used it sparingly, sometimes just once in the act and then often in reference to the exclusion or obligation of participation by pacifists. Others avoided "bear arms" in favor of highly specific— and literal— nouns and verbs to describe the same desired or prohibited actions. Small numbers of English sources are cited which contain "bear arms" terminology, such as Acts of the Privy Council especially vetoing colonial legislation; royal charters; commissions and instructions to governors of royal colonies; and occasional books, newspaper pieces, letters, and Parliamentary speeches. Although drafted in England, they were intended for America and well known there among the legislators and colonial officials.

Governmental Documents:

Laws and Ordinances

Proclamations

Colonial Charters

Governors' Commissions and

Instructions

Acts of Privy Council

Orders of Revolutionary Committees,

Conventions, and

Congresses

State and Federal Constitutions

and Bills of Rights

Other Official Documents:

Reports

Depositions

Examinations

Petitions

Charges to Grand Juries

Constitutional Debates

Ratification Debates

Congressional Debates

Unofficial Documents:

Newspaper Commentaries

Personal Commentaries

Books and pamphlets

Sermons

Private Correspondence

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Sources Not Used. In order to avoid possible anachronisms caused by changes in language usage that took place or could have taken place after the Bill of Rights was ratified in 1791, this study does not refer to any historical evidence after that date. It does refer to the Oxford English Dictionary, not as a source but as an authoritative assessment of the historical meaning of words and phrases. For example, unlike other analyses of the Second Amendment, it does not consider Noah Webster's 1828 Dictionary or 19th century references to the amendment or arms bearing by Tench Coxe, Webster, or others. $$ It also does not refer to 19th and 20th century translations of authors such as Beccaria or Montesquieu because of potentially misleading translations, which do not necessarily correspond to colonial and revolutionary American usage. In addition, this study avoids remarks made by framers and ratifiers of the Constitution and Second Amendment in their senior years because they were, at least potentially, subject to the vagaries of faulty memory and of changing linguistic usages.

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Validity of the Sources. The 300 examples of the use of "bear arms" represent a much larger likely exposure of Americans to the phrase. The militia acts in some colonies were often reenacted verbatim, sometimes on an annual basis, and many were revived and continued verbatim after expiration;(25) they were sometimes published in newspapers or as broadsides for public scrutiny, and they were reprinted in compilations of statutes. Especially in wartime and during riots and insurrections, the militia acts were frequently read to the troops in the field to familiarize them with their military obligations.(26) Many of the other sources were also published and disseminated in various forms, including basic constitutional documents: colonial charters, the commissions and instructions of the royal governors, the Declaration of Independence, and state and federal constitutions and bills of rights. During the Revolution, British and Patriot proclamations of rebellion during the colonial and revolutionary periods added to the total, as did publication of legislative debates, especially the first Federal Congress, as well as public and private discussion and commentary generated during ratification of the federal constitution. Taken together, these 300 examples reached far beyond a mere reading of their provisions on a one-time basis. The geometric spread by thousands of repetitions of "bear arms" in a figurative sense in the militia laws and other documents made the exclusively military meaning of "bear arms" the primary understanding of them before 1800. It was the language of the law and of government.

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FIGURATIVE AND LITERAL USAGE:

THEORY AND PRACTICE

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Figurative v. Literal Usage. "Figurative" and "literal" grammatical and rhetorical terms need some explanation. According to the Oxford English Dictionary, which bases its definitions on historical usage since the 12th century and provides historical examples for the major variations in usage, a literal meaning is one in which is "free from figures of speech, exaggeration, or allusion;" that is, one that is used in its literal sense.(27) For example, to "carry arms" in its literal sense means to transport or convey weapons from one place to another. On the other hand, a figurative meaning is one "based on, or involving the use of, figures [of speech] or metaphors; metaphorical, not literal."(28) For example, to "deliver up arms" was a figurative expression for disarming a defeated enemy, often on the field of battle, but only in the broadest sense is the concept of delivering or transferring weapons from the custody of the defeated forces to that of the victors of significance to the meaning of the overall expression.

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Other Rhetorical Devices. In classical rhetorical terms, the use of the generic terms "arms" to represent one or more specific types of weapons is a "synecdoche" ("a figure of speech in which a part stands for the whole") or a "metonymy" ("substitution of some attributive or suggestive word for what is actually meant").(29) These are recognized devices for allowing words and phrases to be used in non-literal ways to convey a greater sense than the mere words themselves do. Therefore, if one component of the "bear arms" phrase was itself used in a known figurative manner, it is not inconceivable that the entire phrase might have been used figuratively. In addition, some other arms-related phrases were elliptical, that is one which is "defective, lacking a word or words which must be supplied to complete the sense."(30) For example, "a cessation of arms" is an elliptical expression for the end of fighting or warfare,(31) lacking the words "the use of" to complete the more literal sense.

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Use of Figurative Language in the 18th Century. As W. Ross Winterowd has written, "figurative language compresses meaning;" that is, "a great deal more meaning can usually be compressed into a figurative statement than into a literal one."(32) Among renowned 18th century writers, such usage was a given. Paul Fussell describes "the heavy weight of the figurative in the expression of even the most prosaic of the Augustans [18th century English Humanists of the Enlightenment]." "On occasion," he notes, "they enter the world of metaphor even more readily than later writers." Their ready and easy use of military imagery was in part a product of the times. "It is a sense of the precariousness of genuine civilization, of the constant menace to civilized values by internal and external powers of disorder and destruction, that seems to lie behind the humanistic habit of expressing ethical imperatives through images of military assault, ambush, and fortification."(33) This style of writing and books, well known to most educated 18th century Americans,(34) shows that igurative expressions were not foreign nor incomprehensible in the colonies.

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Implications for the Second Amendment. This article argues that the "bear arms" expression in the Second Amendment (and in the earlier state bills of rights) was used in a figurative sense to represent military service— at least to the drafters and ratifiers. The evidence presented below provides strong support for this argument. Therefore, "bear arms" equals "military service" is an equation that represented their "ordinary meaning" in the 18th century. Therefore, Robert Bork's argument that "When lawmakers use words, the law that results is what those words ordinarily mean" can be applied to what "those words ordinarily mean[t]" in the 1780s.(35)

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FIGURATIVE AND LITERAL LANGUAGE IN

200 ARMS-RELATED EXPRESSIONS

Categories of Arms-Related Expressions.

Table 1.
Table 2.
Table 3.
Table 4.
The accompanying tables present over 200 arms-related phrases in use during the 17th and 18th centuries in order to demonstrate the broad variety of terminology employed by Americans to describe military obligation, training, operations, warfare, and associated activities. They present 16 different
but related categories and families of expressions concerning "arms" derived mostly from official governmental or legal documents. They are coded to highlight those used in figurative sense (bold underlined), elliptical sense (bold italics), and literal sense (regular font), according to the context. In the text following the tables, an example of each figurative and some elliptical expressions is quoted to show how different its meaning is from the literal. Missing from the list are "carry arms" and "bear arms," since these are the key phrases that are being examined later in this paper. The ultimate purpose of this article is to determine the proper placement of both phrases.

The categories were determined by the types of expressions found principally in colonial militia laws, and were not devised beforehand. The distribution of terms represents how the terms were used, so that sometimes the same term appears in different categories with different parenthetical explanations of the sense of the usage. It is interesting to note that many of the categories consist exclusively or almost entirely of literal phrases (Table 2), representing the movement of weapons ("gather, "ransport," transfer," "disburse," and "equip") as well as several dealing with the weapons themselves ("inspecting," "types," and "manufacture"). Consequently, any other arms expression that might be found that is likely to have the same overall meaning as those in that category is highly likely to be used in its literal sense. On the other hand, many of the expressions in Table 1 are mixed literal and figurative, and three categories have a very high proportion of figurative or elliptical expressions ("military operations," "armed assembly," "demobilization," and "disarming"). Any additional expressions that have the same overall meaning are highly likely to be used in their

Table 1.
Table 2.
Table 3.
Table 4.

figurative sense. Therefore, these tables provide the general context within which "bear arms" and its companion phrase "carry arms" must be categorized in order to judge their respective places in 18th century usage and to determine whether they were interchangeable synonyms both used in a literal sense or if one or both of them were used figuratively.

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The Military Context of the 17th and 18th Centuries. In identifying an overall context for a military meaning of "bear arms" and other arms-related expressions the frequent international wars and domestic conflicts that colonial and revolutionary Americans experienced from 1689 to 1783 provide a likely candidate. Warfare was endemic: 1689-1697, 1702-1713, 1739-1748, 1754-1763, and 1775-1783 were periods of active international warfare, often touching Americans through military operations or direct attack, more often through wartime constraints. Militia was important as a pool from which to draw military manpower, as a source of firearms to equip troops being fielded for operations, and sometimes as operational military units. Consequently, the numerous militia acts, many of which contained the "bear arms" phraseology, had a real influence on popular discourse and popular consciousness of what the phrase meant. Granted that everyone was not equally informed nor cared about such things. But for men of military age, their families, the legislators and colonial officials who had to call up men and outfit military expeditions, and even the pacifists who petitioned and remonstrated against being obliged to serve or to be fined or taxed for nonparticipation, all of them had a stake in what the words meant in terms of legal liability and imperial military necessity. Frequent international wars and frequent domestic unrest, or suspected unrest and disloyalty, among subservient and other people— slaves, free blacks, Indians, Catholics in the colonial period, German Protestants suspected of being Catholics— kept the militia acts and their terminology at the forefront of the consciousness of many Americans.

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Examples of Figurative Usage. The following examples demonstrate the use of figurative language in some of the key categories of arms-related expressions. All are readily understandable when read in context but, in some cases, are indecipherable or ambiguous when separated from that context. For example, among figurative expressions for assembling or mobilizing for military duty, "preparing to arms" could be considered an elliptical expression, so that with a few more words, the sense is clear even out of context: "preparing to take up arms." And among figurative usages for military training, "nursed to arms" also makes sense with some additional words: "nursed in the use of arms and military training."

1766: "even the Women I believe would take Arms if they were permitted" against the Stamp Act.(36)

1774: "the ultimate aim of the Governor's & his Secretary's late expedition was ... to enable them to oppose those who may arm in support of their Rights." (37)

1774: "America is preparing to arms; and that the deliberations of their town meetings tend chiefly to oppose the measures of this country by force." (38)

1774: "half a million of brave and desperate men nursed to arms must eventually prevail."(39)

1775: "the Arms we have been compelled by our Enemies to assume." (40)

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Figurative Expressions of Military Service. Perhaps the most important category of arms-related expressions concerns active military operations, campaigning, fighting, and revolutionary military resistance. It is here that the Oxford English Dictionary places the "bear arms" phrase as a figurative way of describing military service.(41) The proper placement of that phrase has been the objective, and often the unstated assumption, of studies of the original meaning of the Second Amendment. If "bear arms" was used primarily in a figurative sense in early America and in a predominantly military context, this is its appropriate analytical category. Virtually all expressions in this category are figurative, and many of them have alternative literal meanings. However, only the specific context of each expression reveals its true intent and meaning. For example, "Arms ... must decide the Controversy," "decided by Arms," "oppose ... [British forces] with Arms," "raise the Province to Arms," and "have recourse to arms" can be read both figuratively as turning to the military option or more literally as relying on weapons themselves. The context suggests that the figurative slant provides the better reading and the better understanding of the overall situation. After all, individuals do not go to war as individuals but as part of a larger effort. And in the Revolution, Patriot leaders went to great lengths to prevent individuals and small groups from taking matters into their own hands; rather, they sought to channel and regulate even the "mobs" as well as the "new Militia," the "Independent Companies," and the "Military Associators" to focus on the larger objectives of resistance and redress of grievances.(42) The following quotations illustrate each of the entries on the table for this category.

1692: Punishment for "any person" who shall "obstinately refuse to Appear & Serve in Armes." (43)

1769: "there was no Intention among the People there to oppose the Landing of those Troops, or to resist the Execution of the Law by Arms."(44)

1774: "Arms or Submission must decide the Controversy." (45)

1774: "They flew to arms, and marched off to attack the troops of that King."(46)

1774: "their Intention is to try to raise the Province to Arms."(47)

1775: "rendered it necessary for us to close with their last Appeal from Reason to Arms." (48)

1775: "the Dispute must be decided by Arms." (49)

1775: Anyone "found in arms, or [who shall] continue to give assistance to our enemies" will be subject to "the law of retaliation."(50)

1775: "All Persons illegally in Arms upon the Water are deemed Pirates."(51)

1775: We are "obliged to have recourse to arms, in defence of our Lives and Liberties" and therefore establish "military regulations."(52)

1775: "nothing can justify men, without proper authority, in a rapid recurrence to arms, nothing excuse resistance to the executive power in the due enforcement of law."(53)

1775: "the dispute must be settled by arms."(54)

1775: "The Virginians are all up in Arms" over removal of gunpowder from their magazine.(55)

1775: "in defence of the Freedom that is our Birthright ... [and] against Violence actually offered, we have taken up Arms."(56)

1775: "some are Red-hot & foolishly talk of Arms."(57)

1776: "every man in arms [must] lay them down forthwith and surrender themselves upon pain of being treated as rebels."(58)

1776: "WE, the Subscribers ... will ... Risque of our Lives and Fortunes, with ARMS, oppose the Hostile Proceedings of the British Fleets, and Armies."(59)

1780: "We consider ourselves as citizens in arms for the defence of the most valuable rights of human nature."(60)

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Figurative Expressions for Military Power and authority. A closely related but more general category of expressions dealing with military power and authority in a broad sense also demonstrates how figurative language can use one or a small number of words to convey the idea of a much more comprehensive concept. It also demonstrates that such cryptic usage can be confusing if one tries to impose a literal sense to the words. In each case, "arms" is used as a synecdoche or metonymy to represent a nation's or kingdom's military power, and "military power and authority" can be substituted for "arms" in most cases, to bring out the figurative sense.

1775: "Arise my injured Countrymen, and plead even with the Sword, the Firelock aNd the Bayonet, plead with your Arms, the Birthright of Englishmen."(61)

1775: "The spirit of arming and military parade still runs high in the city."(62)

1775: "we appeal to God ... for the justice of our cause, trusting to his unerring wisdom to direct our councils, and give success to our arms."(63)

1775: "Lexington, Concord, and Bunker Hill opened the tragic scene, and clearly proved to the whole world that North America had no reliance but its own virtue in arms."(64)

1776: In the 17th century, "King James ... seized their towns ... [and] laid them in ruins by his arms."(65)

1787: "As Aristotle tells us ... the commonwealth is theirs who hold the arms: the sword and sovereignty ever walk hand in hand together."(66)

This section has examined how writers in the 17th and 18th centuries used figurative language in many cases to represent a broad range of military operations as well as military power and authority, in contrast to the literal language they used to describe other military and non-military activities involving weapons. This usage pattern provides the overall linguistic and usage patterns for examining how the "bear arms" expression was used during the same period.

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USES AND USAGE PATTERNS OF "BEAR ARMS":

CATEGORIZING AND ANALYZING 300 EXAMPLES

The large body of evidence from the 17th and 18th centuries that uses the term "bear arms" can be divided into six main categories and subdivided to reflect the wide variety of usage. It validates the arguments and generalizations of earlier sections of this paper: all terms were used in a military context; a large percentage come from militia acts, especially for the colonial period. This section will describe the various categories that the expressions naturally fall into, contrast "bear arms" with the meaning of "carry arms," review some examples of each, and come to some conclusions concerning the meaning of "bear arms" in these contexts. Note: with only a few exceptions, only the linked words "bear arms" are considered because they represent a fixed concept that the separate words do not.

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Chronological Distribution of "Bear Arms" Expressions. The following table summarizes the six major categories in which "bear arms" expressions appeared. They are roughly divided among three periods— the whole of the colonial period from just after the founding of the Jamestown settlement in Virginia to the Boston Tea Party in late 1773; the revolutionary period from Parliament's passage of the Coercive Acts in 1774 to Shays's Rebellion in Massachusetts in 1786; and the Constitution and Bill of Rights period from the Philadelphia Convention in 1787 to ratification of the Bill of Rights in 1791.

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Overview of Categories. The most frequent usage of "bear arms" appeared as a result of Quaker and other pacifist concerns about being compelled to perform military duty under the various colonial, state, and national militia acts, to pay a fine or "equivalent" for their personal service, or to provide a substitute. The next two most common usages dealt with an individual's capability to perform military service and his obligation to do so. Because of frequent demands for military operations during the colonial wars and the Revolutionary War, the fact of military service also created a large number of uses of the expression. The low number of examples of conscientious objection and obligation in Table 3 in the Revolutionary War years when a much larger number would be expected given the demands for military manpower suggests that there are likely many more uses of the phrase than is indicated here. Notably, use of "right to bear arms" in its various forms was relatively minor in comparison to the other forms. Table 4 indicates the various subdivisions within each category. They are roughly arranged in order of frequency of occurrence.

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Conscientious Objections to "Bearing Arms." Quakers and other pacifists had longstanding objections to military service and all requirements for providing firearms and military equipment under terms of the colonial and state militia acts and various legislative and executive orders. Although most of the following examples come from Pennsylvania, there are many from other colonies and states because of pockets of concentration of Quakers elsewhere. These examples show that Quakers were not reluctant to make their religious principles known to the legislatures by petition, memorial, and remonstrance. Many of the usages in this category also come from consideration of those protests, ounterprotests from non-pacifists, and debates on militia bills concerning exemptions. The "bear arms" formulation was remarkably unambiguous and consistent in equating "bear arms" with military service and military obligation. Although Quakers were opposed to any use of weapons, some did arm themselves during periods of crisis, such as in Pennsylvania during the Paxton riots in Pennsylvania in the mid-1760s(67) and the early Revolution and were even disarmed sometimes for failure to serve or find a substitute.68) As a result, many of these individuals were excommunicated or punished. Moravians, on the other hand, while opposed to military service, were not opposed to manufacturing firearms.(69) In no known instance, however, was there a protest concerning non-military use of weapons. Therefore, this category represents "bear arms" in a strictly military context.

1670: "Whereas the people called Quakers living at Port Royal have given several reasons why they cannot against their consciences bear arms, by which they seem very obstinate in that matter."(70)

1683: Militia duties "not to extend to prsons Conscientiously refuseing to beare Arms."(71)

1755: "there are in this Colony many of the people called Quakers, who from Religious or conscientious scruples are averse to the bearing of Arms or Military Service."(72)

1770: "the People called Quakers, who demean themselves in a quiet and Peaceable Manner, and from a religious Principle, are conscientiously scrupulous of bearing Arms, or appearing or answering to their Names in Muster Field" are "not obliged to appear and muster" but must provide a substitute if called on.(73)

1775: Petition "setting forth, that the Memorialists, with great Concern, perceive that fatal Mischiefs will arise to the Association from the Lenity shewn towards Persons professing to be conscientiously scrupulous against bearing Arms; — that People sincerely and religiously scrupulous are but few in Comparison to those who upon this Occasion, as well as others, make Conscience a Convenience; — that a very considerable Share of the Property of this Province is in the Hands of People professing to be of tender Conscience in military Matters."(74)

1775: "As there are some people, who, from religious principles, cannot bear arms in any case, this Congress intend no violence to their consciences, but earnestly recommend it to them, to contribute liberally."(75)

1775: "there are some Persons, who, from their religious Principles, are scrupulous of the Lawfulness of bearing Arms."(76)

1778: "all persons who refuse to bear arms in defense of the State to which they belong" plus convicted traitors, are to lose the privileges of citizenship.(77)

1788: "That any person religiously scrupulous of bearing arms ought to be exempted, upon payment of an equivalent to employ another to bear arms in his stead."(78)

1790: "We also contemplate an exemption favourable to other classes of men, such as divines, schoolmasters, students, and those who are conscientiously scrupulous of bearing arms."(79)

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Capability and Obligation to "Bear Arms." These categories of usage come predominantly from militia acts and governmental orders which sought to define the segment of the adult male population who were liable for military duty— either personal service or providing of firearms and military equipment for themselves or for others to use during military training and service. Military capability in early America was based on very basic requirements of gender (males only) and physical and mental ability (based on age and health).(80) More was required than merely the ability to pick up and convey a weapon from place to place— the ability to march; to maneuver in formation; to load, fire, and maintain weapons; and to fire on command under pressure. The preferred weapon was the military musket, although riflemen were used in specialty organizations. Equally important was social status. That is, slaves, free blacks, indentured servants, and, from time to time, apprentices, Catholics, non-citizens, and others, were explicitly excluded from the provisions of the militia acts. Because these expressions come from militia legislation, the context is entirely and unambiguously military.

Capability:

1693: "upon which [alarm] all the trained souldiers, and others capable to bear arms, that are then resident in any town, shall forthwith appear compleat with their arms and ammunition according to law, at the usual place of rendezvous."(81)

1702: "You shall send [an] Account to us, and to our Commissioners for Trade and Plantations, of the present Number of Planters and Inhabitants, and how many of them are fit to bear Arms in the Militia of our said Province."(82)

1755: "It grieves me to see near 20000 Men in this Province fit to bear Arms & yet for want of an effectual Militia Law ... not 100 are obliged ... to act in their own Defence."(83)

1775: "whereas we have Sent one third part of our men capable to bear arms to Joyn the Provincial army, Such a Situation appears to leave us weak and defenceless."(84)

1779: "and that all other male persons who though incapable from bodily infirmity to bear arms, may in the judgment of the assessors be able to contribute towards a bounty."(85)

1781: Governor Thomas Jefferson ordered the County Lieutenants to "assemble every man of your County able to bear Arms" against British expeditionary force.(86)

Obligation:

1633: "all prsons shall beare Armes" who are over 16, except Commissioners and church officers.(87)

1641: "A Muster Master Generall to be, And All persons above 16. to beare Arms."(88)

1665: "The Assembly taking into consideration the great defect in training [including] complaining of the great inequality, in that the poorest being vnable to spare wherewith to maintaine armes and amunition, as powder, &c., yett are forced by the law to beare armes as well as the most able."(89)

1754: "Let therefore every man, that, appealing to his own heart, feels the least spark of virtue or freedom there, think that it is an honour which he owes himself, and a duty which he owes his country, to bear arms." — Defense of life and liberty by "bear[ing] arms in the bands of his country."(90)

1767: "the colonies are defended by their militia, which they are great expence to raise and train; every person in them, capable of the service, is obliged to bear arms, and to be provided with them at their own expence."(91)

1776: "this Assembly hath passed a Resolve, for draughting all male Persons, subject by Law to bear Arms, whether of the Militia, Alarm-List, or Independent Companies."(92)

1782: At "respective musters every person liable to bear arms shall appear properly armed and accoutred."(93)

1790: Mr. Sherman "believed, the exemption of persons conscientiously scrupulous of bearing arms to be necessary and proper. He was well convinced that there was no possibility of making such persons bear arms, they would rather suffer death than commit what appeared to them a moral evil."(94)

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The Fact of "Bearing Arms." Because of the frequency and long periods of war in the colonial period, both international conflicts and Indian wars, American men were subjected to military service and other military obligations on a recurring basis. "Bear arms" expressions dealt with personal service in wartime. All are in an exclusively military context and all represent some aspect of military service.

1776: Alexander Gordon "hath born Arms against this Colony and been in favour of Lord Dunmore" and others had aided Dunmore but "have not taken Arms or been so active as to be deemed Prisoners of War."(95)

1783: Reference to Articles 5 and 6 of the Peace Treaty — In the provisional articles, Congress said it would "earnestly recommend ... the restitution of all estates, rights and properties" taken from Loyalists who had not "borne arms" against the United States."(96)

1788: "I have born arms in defence of my country; — I am now willing to risque myself and property, together with my liberties and privileges, (with a well regulated militia) and when they are invaded, I will gird on my sword and appear in their defence."(97)

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Miscellaneous Uses of "Bear Arms." Three subcategories of usage in Table 4 also derive from the militia acts, dealing with exemptions, permissions, and prohibitions. Those dealing with "privilege to bear arms" come the closest to a "right to bear arms," but each is also in a military context and has a military meaning.

1702: "That no person or persons whatsoever shall at any time hereafter, by virtue of any certificate already given or to be given by two chirurgeons as aforesaid, be excused or exempted from bearing arms and attending trainings and other military exercises and duty" unless released by commissioned officers.(98)

1776: "And that all Persons who have been disarmed for refusing to associate with their Countrymen for the Defence of the United Colonies ... may have a fair Opportunity of convincing the Public that their Refusal to sign the said Association did not arise from a Disinclination to defend the Rights of America ... [and may] be restored to the Privilege of bearing Arms in Support of a Cause so important and so glorious."(99)

1778: Amendment proposed by newspaper editor — "All citizens ought to have privilege to keep and bear arms for the defence of themselves and the community."(100)

1778: "all persons" under 16 and over 60 "are hereby excused from bearing arms in time of peace or alarm; and all persons liable to bear arms by this Act, shall constantly keep" arms.(101)

The other subcategory entitled "motivation" contains examples of expressions that transcend the language of the militia acts. Some are exceptionally figurative in usage ("called" and "reputable," in particular), but all are readily understandable as conveying the idea of military service.

1684: "And that other persons nott Excused by Law pretending tender Consciences (so not willing to beare armes) doe find a Man to serve in their Stead or pay the fines."(102)

1776: "the People who have thereby been induced to bear Arms against their Country."(103)

1778: "We wish you, and all our friends and brethren, called to bear arms, and jeopard their lives in defence of their country, and support of the common rights of mankind, the presence of god, and a blessing this day."(104)

1783: "By giving such a tone to our Establishment; by making it universally reputable to bear Arms and disgraceful to decline having a share in the performance of Military duties; in fine, by keeping up in Peace 'well regulated, and disciplined Militia,' we shall take the fairest and best method to preserve, for a long time to come, the happiness, dignity and Independence of our Country."(105)

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Right to "Bear Arms." This category contains the language of the various state and federal bills of rights, commentaries in Congress and outside, and references. Of all the categories, this is the most ambiguous in meaning— mainly because the "bear arms" expressions lack context and because in a few cases non-military language was introduced into the discussion. This is the only category that does not provide a predominantly military meaning for "bear arms" in the expressions themselves. However, one example demonstrates that this right had a number of different faces. In Maryland in August 1776, Rezin Hammond "told the people present that every man that bore arms in defense of his country had a right to vote, and if they were allowed no vote they had no right to bear arms."(106) In this equation, arming bearing and enfranchisement went hand in hand; that is, military service and enfranchisement were linked rights. In this case, "bear arms" had an explicit, military meaning.

1776: "That the people have a right to bear arms for the defence of themselves, and the state; and as standing armies in time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by the civil power."(107)

1780: "The people have a right to keep and to bear arms for the common defence. And as in time of peace armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it."(108)

1788: "The people have a right to keep and bear arms, for the national defence."(109)

1790: "The right of bearing arms was a privilege granted to the states and not a duty disposed on them."(110)

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17th AND 18th-CENTURY DEFINITIONS OF "BEAR ARMS"

Explicit Military Definitions of "Bear Arms" Contained in Militia Acts. "Bear arms" in militia statutes and official reports represents a very broad context of military obligation and compulsory military service. On the other hand, the term was rarely used in acts for raising voluntary provincial forces and then only to describe the manpower pool from which to draw. Therefore, "bear arms" represented the broadest conception of military (mostly militia) service. Some of the militia acts and other documents contained explanatory language defining at least in part what they meant by "bear arms." All refer to some aspect of military service. For example:

1665: "to bear Armes or wage war by sea or Land."(111)

1669: "to bear arms, and serve as soldiers."(112)

1676: "to beare armes in martiall or millitary manner."(113)

1730: "to bear Arms, or learn or exercise himself in the Art of War."(114)

1731: "bearing arms or attending musters and training."(115)

1755: "the bearing of arms or Military Service."(116)

1775: "bear Arms, nor be concerned in warlike Preparations."(117)

1775: "bearing arms in the militia."(118)

1780: "Bairing Arms or Doing Duty" in the militia.(119)

1787: "principled against fighting or bearing arms."(120)

Sometimes the definition was more explicit. For example, in August 1744 Rhode Island exempted Quakers from all requirements for military duty, going into considerable detail that also clearly and unambiguously displays the military meaning of "bear arms."

"That any Person inhabiting in said Colony, and of a sober Life and Conversation, who can and shall Frankly and Freely, upon his solemn Affirmation declare that his Opinion and Religious Sentiments are, that in Matters relating to War, he ought to be Passive; and that the Practice of War, or the Art thereof, and the Use of Arms, and the Exercise thereof in War, are inconsistent with his Belief as a Christian, and that he declineth the Customary Use of Arms in War, and would be excused from the Law relating to Military Discipline for Conscience-Sake and out of Principle, and for no other End or Purpose whatever: In this Case such Person shall be exempted from bearing Arms as a Soldier, and from the Law of said Colony relating [to] Military Discipline or Equipment."(121)

Three other pieces of evidence are significant. As quoted above in the section on the right to bear arms,(122) the requirement for military service as a prerequisite for voting ("every man that bore arms in defense of his country had a right to vote") and the theoretical reverse (if men "were allowed no vote they had no right to bear arms") clearly demonstrate that "bear arms" represented military service. Similarly, during debate in the House of Representatives on the Bill of Rights in mid August 1789, Elbridge Gerry of Massachusetts argued against a constitutional exemption for pacifists from militia duty because this "would give an opportunity to the people in power to destroy the Constitution itself. They can declare who are those religiously scrupulous and prevent them from bearing arms."(123) Clearly, Gerry was using "bear arms" to refer to military service, not to hunting or self-defense. Also, during debate over the first national militia bill in December 1790, Roger Sherman of Connecticut "asked, if gentlemen imagined, that the state governments had given out of their hands the command of the militia, or the right of declaring who should bear arms."(124) Consistently, such references are to militia duty, not to private use of weapons.

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"Bearing Arms" in Naval Service. Perhaps the most revealing use of "bear arms" as a figurative expression of military duty concerning service with the Continental or state navies or service aboard privateers. This type of military service, on the high seas or coastal waters as a pilot or seaman— or as an impressed sailor on a British warship— was just as much "arms bearing" in 18th century linguistic practice as was service in the militia. And there is no ambiguity of meaning. Sailors did not "carry" weapons as a normal part of their duties. Rather, they manned the sails or performed other non-armed jobs aboard ship. Only in extreme cases were they armed from the ship's magazine with swords, muskets, or other personal weapons, or manned the cannons. Therefore, "bearing arms" was exclusively military service, with no other option. This usage is captured most persuasively in the clause of the Declaration of Independence, written by Thomas Jefferson without any known editorial changes from the drafting committee.

1665: "to bear Armes or wage war by sea or Land."(125)

1775: Royal Navy captured "several private Gentlemen, and others, who did not bear Arms at the time" from vessels in Virginia waters.(126)

1776: Grievances— "a law to make prize of all vessels trading in, to, or from the united colonies — a law to make slaves of the crews of such vessels, and to compel them to bear arms against their conscience, their fathers, their bleeding country!"(127)

1776: Joseph White, pilot, who was captured by Capt. Barron, is "discharged on his parole not to bear Arms, or give intelligence or assistance to Lord Dunmore" or other British officials.(128)

1776: Declaration of Independence— "He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country."(129)

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"Carry Arms" as a Synonym for "Bear Arms." Some scholars consider "bear arms" and "carry arms" to be direct synonyms, both expressing the conveying or movement of weapons for a variety of purposes. When "bear arms" is admitted to be used in a military context, it is assumed that those usages are a subset of general "carrying." Usage patterns in the 17th and 18th centuries demonstrate the opposite. In terms of weapons use, "bear arms" was the preferred term, figuratively representing military service, which required use of firearms and swords but also sea service with minimal or no use of personal weapons, especially firearms. It was used in a general sense. When specificity was required, verbs other than "bear" were used in the literal sense of carry, bring, etc. (see next section).

1658: "the cheife Milletary Comander in each towne shall take care that ... every man may know to what Squadron he belonges and when he is to carry armes."(130)

1705: Clerk of each militia company "be excused from carrying or appearing in arms at any muster, generall or particular, except in case of a rebellion or invasion."(131)

1712: "every person [16-60] able to carry armes" is to be enlisted in militia.(132)

1775: "'So, Mr. Hubart, you'll not allow Roman Catholics to carry guns.' Your petitioner answered, that his circumstances were too small, to forbid any party or sect to carry arms."(133)

1775: "a [British] proclamation will ... invit[e] the Americans to deliver up their arms ... [S]uch ... as afterwards proved to carry arms shall be deemed rebels, ... [and were to be] punished accordingly."(134)

1775: British proclamation— "others had enrolled their Names and had for some Time carried Arms in the Defence and Preservation of the City, have lately laid them down." (135)

1775: Two prisoners of the British "Oliver Porter, and Dean two Natives of Boston and the others have carried Arms against His Majesty in this Province." (136)

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"Bear Arms" as a Synonym for "Carry Arms." "Bear" was occasionally used in its literal sense of conveying weapons. It is significant that such examples are rare in the militia acts and do not represent a general usage pattern. Although there may be a temptation to equate "bear arms" with "bear a gun," for example, the two phases were used quite differently in America before the 19th century and, therefore, do not constitute an equivalence.(137)

1679: "and instructing them how to bear and use their arms."(138)

1726: "delinquent ... persons shall plead that it is against their consciences to fight or bear any sort of arms or weapons to defend himself, his interest, and the interest of the colony against a common enemy."(139)

1777: "I am convinced every Man who can bear a Musket, will take it up."(140)

1785: Penalty for illegal hunting each time "he shall bear a gun out of his enclosed ground, unless whilst performing military duty ... and every such bearing of a gun shall be a breach."(141)

1790: "very few capable of bearing arms would be in want of arms to bear."(142)

Two quotations from the period of Bacon's Rebellion in Virginia in 1676 demonstrate that the two expressions were sometimes used interchangeably, but perhaps incorrectly. During suppression of the rebels by British troops and loyal militia, the rebels and non-participants were prohibited from appearing with weapons— presumably including hunting— because appearing armed in public was the strongest indicator of disaffection and disloyalty. At the end of the uprising, "liberty [was] granted to all persons to carry their arms wheresoever they go," although there still were restrictions on assembling in arms.(143) The next year, someone commented that "Now every man may bear arms," indicating renewed freedom of armed movement for private purposes, although military service is another possible, and even likely, explanation because the militia was revived after the rebels were suppressed.(144)

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QUESTION OF EXCLUSIVELY MILITARY USAGE OF "BEAR ARMS"

The preceding sections of this paper lay out a broad variety of examples of how "bear arms" was used figuratively in the 17th and 18th centuries almost always in an unambiguous military context. That usage pattern, however, does not deal with one other important issue that has been raised in writings on the Second Amendment— whether "arms bearing" represented an exclusively military concept or also included (or was dominated by) non-military use of firearms. Certainly in cases in which sea service was involved and in most others concerning land service, "bear arms" had an exclusively military meaning. However, colonial laws sometimes used literal words and expressions when necessary to describe specific actions and legal requirements (in addition to, and often side by side with, figurative language). These are important examples because they show that legislative drafters could use both types of rhetorical expressions to emphasize different legal requirements. They were not confused by figurative and literal language and did not use the two types indiscriminately but deliberately. The examples are also important because modern legal scholars and some historians see an equivalence between the figurative and literal uses of "bear arms" and "carry arms" and use both versions indiscriminately to prove what, in fact, they only assume.

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Use of "Carry Arms" and Other Literal Terms to Emphasize Specific Actions. In addition to usage of "bear arms" to refer to military service and obligation in the broadest sense, legislative drafters in the 17th and 18th centuries sometimes used explicit literal verbs to specify desired actions to be taken or actions to be prohibited. This practice was especially true during emergencies when it was necessary for all or part of the militia to be armed even when not mobilized or in training and, in particular, to take their weapons and ammunition to church (the "Meeting" in New England). In such cases, the militia acts were careful to use the literal verb "bring" or "carry" rather than "bear" to describe this requirement. Sometimes the "bear arms" formulation or a specific reference to a militia organization, such as the local company, was also used to indicate that only those men under militia obligation were obligated to do so.(145)

1618: "to go armed to Church & to work, keep watch."(146)

1619: "All persons whatsoever upon the Sabaoth daye shall frequente divine service and sermons both forenoon and afternoon; and all such as beare armes, shall bring their pieces, swordes, poulder, and shotte."(147)

1632: "All men that are fittinge to beare armes, shall bring their peices [sic] to the church."(148)

1645: "there shall be a cessation of bearing of arms vnto the meeting howse vpon the Lord's daye."(149)

1653: "That one third of euery milletary companie shall bring theire armes, with powder and shott, to the meetings on the Lords day."(150)

1677: General Court "respecting carrying of armes to the Meeting" put into effect "by all such psons as are ... required to beare armes viz: the one halfe of the Companie one day and the other the other day."(151)

1766: "every male white inhabitant ... liable to bear arms in the militia, ... resorting on any Sunday, ... shall carry with him a gun or a pair of pistols, in good order, and fit for service, ... and shall carry the same into the pew or other seat."(152)

1770: "every male white inhabitant ... who is ... liable to bear arms in the militia ... and resorting ... to any church ... shall carry with him a gun, or a pair of pistols."(153)

Other verbs like "use," "go," and "appear" were also used to describe specific actions. Some colonies depended on this literal style of language rather than the figurative "bear arms," presumably because specificity made the provisions more legally enforceable.(154) In this regard, Thomas Jefferson's proposed bill of rights for the new Virginia state constitution in 1776 included a guarantee that "No freeman shall ever be debarred the use of arms,"(155) not a right to "bear arms." Jefferson has never been accused of having a poor vocabulary. He chose his words carefully. "Bear arms" was legal terminology for military service and militia obligation, and he used it in that way in the Declaration of Independence (see quotation at note 129). "Use" arms, on the other hand, represented an entirely different concept.

1624: "That men go not to worke in the ground without their arms (and a centenell upon them.)"(156)

1692: Fine if any man fails to "appear and bring with him one good Serviceable Gun fixed."(157)

1703: "every regimental officer ... shall carry or be armed with a half pike."(158)

1746: "in Time of War [officers may] order all Such under their Com'and liable by Law to Troop or to Train to carry their Arms & Amunition about with them."(159)

1755: Deserters "carry off their Arms and Livery and steal Horses to carry them away."(160)

1758: "every person borne on the alarm list, and not on the train band, shall carry or send his arms and ammunition into the field to be viewed."(161)

1774: Patriots "repaired to the Fort, and it is said they carried away all the small arms."(162)

1775: "Here an old soldier carried a heavy Queen's arms with which he had done service at the conquest of Canada twenty years previous."(163)

1775: Regiment of Continentals to be raised "to Carry Rifles."(164)

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Literal Prohibitory Language in Relation to Men Outside the Militia. Colonial laws, especially the slave codes, contained language prohibiting slaves from making use of firearms and other weapons without the use of their masters. This appears also to be true of criminals who stole firearms. In these cases, the term "bear arms" was never used to describe the prohibition or the theft. "Carry" was the most frequent usage. Since "bear arms" was most often used to represent military service or militia obligation and duty, it was inappropriate to use the same formulation in reference to individuals who were not part of the militia. (The few times that slaves and free blacks were incorporated into the militia, either as soldiers or as unarmed pioneers and laborers, does not invalidate this generalization.)

1657: Court finding "that there was a Conspiracie amonst the said Examins to run away and to steale and Carry with them Gunns powder Shott and provision and Mr. Osburne's boat."(165)

1715: "No negro or other slave shall be permitted to carry any gun, or any other offensive weapon, from off their master's land, without license."(166)

1740: "It shall not be lawful for any slave, unless in the presence of some white person, to carry or make use of fire-arms, or any offensive weapon whatsoever."(167)

1750: Penalty for "any Negro or Mulatto slave ... to carry any guns, swords, pistols, fowling-pieces, clubs, or other arms and weapons whatsoever, without his master's special license."(168)

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Literal Prohibitory Language in Hunting Acts. As with other prohibitory language, in the few instances where statutes regulating hunting even mentioned weapons, the language was usually the literal "carry" specific weapons rather than "bear arms" although in one instance the expression "bearing a gun" was used.

1640: Inhabitants are "NOT to shoot or hunt on other men's land that is seated and bounds marked ... but may pursue deer and shoot on their own land."(169)

1654: No work on Sundays, and "no Inordinate Recreations; as fowling, fishing, hunting, or other, no shouting [sic] of Gunns ... except in Case of Necessity."(170)

1765: No one "shall presume to carry any gun, or hunt" without permission on others' lands."(171)

1771: Act for "Preservation of Deer and other Game, and to prevent trespassing with Guns."(172)

1777: Act to "prevent hunting with a Gun by Fire Light in the Night."(173)

1785: Penalty for illegal hunting each time "he shall bear a gun out of his enclosed ground, unless whilst performing military duty ... and every such bearing of a gun shall be a breach."(174)

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CONCLUSION

"BEAR ARMS" WAS AN UNAMBIGUOUS MILITARY CONCEPT

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Summary. This paper finds that the overwhelming preponderance of usage of 300 examples of the "bear arms" expression in public discourse in early America was in an unambiguous, explicitly military context in a figurative (and euphemistic) sense to stand for military service, especially in the militia. Such usage represented a remarkable continuity over nearly two centuries, so much so that the phrase came to represent standard legal terminology describing military obligation, capability, exemption (especially for pacifists), service, and, after 1776, constitutional right. The 300 examples represent thousands of likely repetitions of the phrase in its military meaning, reinforcing the definition in the minds of Americans. Of all these usages, the "right to bear arms" formulation was the most ambiguous because the constitutional clauses in which it occurred often lacked sufficient context to define its meaning clearly. However, at least one use of the phrase in Maryland in 1776 was explicitly military. Legislative drafters did sometimes use literal language to define specific legal responsibilities for use of weapons under the militia acts. But they employed "bear arms" only occasionally in a literal sense, and the linked words were never used to describe hunting or other non-military use of weapons, or to prohibit their use. The few cases of ambiguous meaning are only a tiny fraction of the majority and cannot be the basis for generalizing about "bear arms"— they were the exception, not the rule of early American legal terminology. Therefore, this overwhelming pattern of military context gives great weight to the conclusion that the "right to ... bear arms" in the Second Amendment had an exclusively military meaning to the drafters and ratifiers and probable understanding to at least a large portion of the American population.

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Implications for Resetting the Terms of Debate on the Second Amendment. While these 300 examples of early American figurative usage of the "bear arms" phrase do not provide a final answer to the question of the meaning of the entire Second Amendment, they do emphasize the preponderant military meaning of its key component phrase. This conclusion provides the basis, rationale, and urgency for reexamining the amendment from a purely military perspective. It is possible, and likely, that the "keep arms" component was also understood in early America in an exclusively military context. This is especially likely since virtually every militia act used the word "keep" or a close synonym to describe the requirement to own or have custody of a weapon and maintain it for military use. And there is no doubt that Americans like John Adams, the author of the Massachusetts bill of rights of 1780 which was the first to use "keep arms" as part of a constitutional guarantee, saw the English common law implications of the phrase. However, like "bear arms," "keep arms" was American terminology, as opposed to the English "have arms" expression. Therefore, it is time to relook at the Second Amendment and reconstruct this badly deconstructed article of the Bill of Rights in a military context.


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NOTES

1. Copyright 1999 by John K. Rowland. Prepared specifically for and used by permission by the Potowmack Institute as part of its amicus curiae brief in the case of United States v. Emerson, U.S. Court of Appeals, 5th Circuit, case number 99-10331, August 1999. text@note1

2. Ph. D., Ohio State University, M.A., College of William and Mary. Associate Dean, Joint Military Intelligence College, Washington, DC 20340-5100. text@note2

3. See Don B. Kates, Jr., "Handgun Prohibition and the Original Meaning of the Second Amendment," Michigan Law Review, 82 (Nov 1983), 204-277 at 211-213 for a convenient synopsis of the terms of debate. See also Joyce Lee Malcolm, A Right to Bear Arms: The Origins of an Anglo-American Right (Cambridge, MA., 1994), 210 note 3, which contains a brief bibliography of pertinent works. Robert J. Cottrol, ed., Gun Control and the Constitution: Sources and Explorations on the Second Amendment (New York and London, 1994), contains 10 key articles. text@note3

4. L. A. Powe, Jr., "Guns, Words, and Constitutional Interpretation," William and Mary Law Review, 38 (1997), 1311-1403 at 1313. text@note4

5. Cottrol and Raymond T. Diamond, "The Fifth Auxiliary Right," Yale Law Review, 104 (1995), 995-1026 at para following note 28. The leading advocate of a settled meaning is Stephen P. Halbrook, who argues his point in "What the Framers Intended: A Linguistic Analysis of the Right to 'Bear Arms,'" Law and Contemporary Problems, 49 (Winter 1986), 151-162 at 152-157. text@note5

6. Among legal scholars, Halbrook has looked the most intensively at the historical record. See That Every Man Be Armed: The Evolution of a Constitutional Right (Albuquerque, 1984); A Right to Bear Arms: State and Federal Bills of Rights and Constitutional Guarantees (New York and Westport, CT, 1989); "Encroachments of the Crown on the Liberty of the Subject: Prerevolutionary Origins of the Second Amendment," University of Dayton Law Review, 15 (1989), 91-124; "The Right to Bear Arms in the First State Bills of Rights: Pennsylvania, North Carolina, Vermont, and Massachusetts," Vermont Law Review, 10 (1985), 255-320; and other articles. text@note6

7. In her review of Halbrook's That Every Man be Armed, Malcolm argues that in addition to "scholarly neglect" of the Second Amendment, its "history has been badly misinterpreted." George Washington Law Review, 54 (Jan & Mar 1986)< 452-464 at 457-458. text@note7

8. Robert E. Shalhope, "The Ideological Origins of the Second Amendment," Journal of American History, 69 (Dec 1982), 599-614; Robert J. Taylor, "American Constitutions and the Right to Bear Arms," Massachusetts Historical Society, Proceedings, 95 (1983), 52-66; Lawrence Delbert Cress, "An Armed Community: The Origins and Meaning of the Right to Bear Arms," Journal of American History, 71 (June 1984), 22-42; Shalhope and Cress, "The Second Amendment and the Right to Bear Arms: An Exchange," Journal of American History, 71 (Dec 1984), 587-593; Shalhope, "The Armed Citizen in the Early Republic," Law and Contemporary Problems, 49 (Winter 1986) 125-141; Don Higginbotham, "The Federalized Militia Debate: A Neglected Aspect of Second Amendment Scholarship," William and Mary Quarterly, 3rd ser., (Jan 1998), 39-58; and Malcolm, To Keep and Bear Arms, present the broadest variety of evidence. text@note8

9. In addition to Halbrook's "Linguistic Analysis" (see note 5), Kates briefly deals with the "bear arms" phrase in a section called "Parsing the Language" in "Handgun Prohibition," 219-220. text@note9

10. For example, Halbrook's "What the Framers Intended," 153, looks at only 14 different examples to explicate the "original" meaning. Of those, only 2 actually contained the "bear arms" phrase, 2 focused on the word "bear" in isolation or in relation to the word "gun," and others emphasized the use of weapons (pistols and firearms) without relating them to "bear arms." Moreover, 5 were 19th century sources. None provides a compelling argument about the meaning of "bear arms" as a phrase. It is interesting that Halbrook attempted an analysis of the words in reaction to a comment in Cress's article, "An Armed Community." In his book, A Right to Bear Arms, 316, Halbrook criticizes Cress because he "cites no original sources to substantiate his conclusion that "for eighteenth-century Americans 'to bear arms' meant militia service 'exclusively'" or "that there are only a few hints 'that Americans may have viewed bearing arms as an individual right.'" In his earlier book, That Every Man Be Armed, in a section entitled "A Linguistic Analysis of the Second Amendment," 84-87, Halbrook addressed the same issue but in "a purely logical analysis of the words of the Second Amendment and its relation to the Bill of Rights in its entirety" that does not address the specific meaning of "bear arms." text@note10

11. For example, Lois G. Schwoerer, "The Contributions of the Declaration of Rights to Anglo-American Radicalism," in Margaret C. Jacob and James R. Jacob, eds., The Origins of Anglo-American Radicalism (London, 1984; reprint, New Jersey and London, 1991), 131, equates the 1689 British right to "have" arms with a right "to bear arms (under certain restrictions)." E. Wayne Carp, "The Problem of National Defense in the Early American Republic," in Jack P. Greene, ed., The American Revolution: Its Character and Limits (New York and London, 1987), 21, also refers to the British Declaration of Rights: it "acknowledged the right of Protestants to bear arms." In describing the tense situation in Boston in 1768 just prior to its occupation by British forces, Lawrence H. Gipson, The British Empire Before the American Revolution (15 vols., New York, 1936-70), XI, 162, reverses the language of Boston's appeal to the British Declaration as "a right to carry arms in their own defence." In addition, in her The Right to Bear Arms, 137, Malcolm contrasts the British Declaration and the Second Amendment, stating that "the American right claims for 'the people' ... a right to keep and carry weapons that the government, or at least the federal government, must not breach." In each case, the equivalence of the terms is assumed, not argued. text@note11

12. James A. H. Murray, Oxford English Dictionary on Historical Principles (13 vols., Oxford, 1933), I, 449. text@note12

13. Oxford English Dictionary, I, 731. text@note13

14. Vincent Crapanzano's new book, Serving the Word: Literalism in America from the Pulpit to the ench (New York, 2000 [forthcoming]), looks at literalism from an anthropological and cultural perspective to analyze America's turn to fundamentalism in its "search for certainty." text@note14

15. Irving Brant, The Bill of Rights: Its Origin and Meaning (Indianapolis, 1965), 478. He was also author of James Madison (6 vols., Indianapolis, 1941-61). text@note15

16. Cress, Citizens in Arms: The Army and the Militia in American Society to the War of 1812 (Chapel Hill, 1982); and "An Armed Community," 22-42 at 29-30. text@note16

17. The earliest comprehensive examination of the term in its 17th and 18th century context was J. Smith, "The Constitutional Right to Keep and Bear Arms," (Thesis, Harvard Law School, 1959), 42-55, who examines the use of "bear arms" in the colonial militia acts and compares it to "carry arms" in other acts. His findings are summarized by Kates, "Handgun Prohibition," 219. text@note17

18. Rowland, "Origins of the Second Amendment: The Creation of the Constitutional Rights of Militia and of Keeping and Bearing Arms" (Ph.D. Dissertation, Ohio State University, 1978). text@note18

19. For example, Halbrook uses only 14 sources in "What the Framers Intended" 152-157. text@note19

20. See, for example, Jesse Lemisch, "The Radicalism of the Inarticulate Merchant Seamen in the Politics of Revolutionary America" in Alfred F. Young, ed., Dissent: Explorations in the History of American Radicalism (DeKalb., IL, 1968), and the essays in his The American Revolution: Explorations in the History of American Radicalism (DeKalb, IL., 1976), and Beyond the American Revolution: Explorations in the History of American Radicalism (DeKalb, IL, 1993). text@note20

21. If the popular understanding did diverge from that of the framers and ratifiers, it would make an interesting case of a nation's leadership misreading or ignoring the perceptions and beliefs of their constituents. text@note21


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