• Email
  • Single Page
  • Print

To Keep and Bear Arms

So nothing was added or changed that affected Madison’s original subject matter. The things removed did not change the sentence’s frame of reference. The transposition fixed the sentence even more precisely in a military context. How, then, did the ratification alter Madison’s terms? The Standard Modelers draw on an argument made by Stephen Halbrook, an argument often cited by the NRA:

The Senate specifically rejected a proposal to add “for the common defense” after “to keep and bear arms,” thereby precluding any construction that the right was restricted to militia purposes and to common defense against foreign aggression or domestic tyranny.13

His proof of deliberate preclusion is this passage in the Senate records: “It was moved, to insert the words, ‘for the common defence,’ but the motion was not successful.” We are not told why the motion failed. We know the Senate was mainly compressing and combining the amendments, not adding to the language. There are several possible reasons for the action, all more plausible than Halbrook’s suggestion that “for the common defense” would have imported a military sense that is lacking without it. The military sense is the obvious sense. It does not cease to become the obvious sense if something that might have been added was not added.

The obvious reason for excluding the term “common defense” is that it could make the amendment seem to support only joint action of the state militias acting in common (shared) defense under federal control. The Articles of Confederation had used “common defense” to mean just that, and the defenders of state militias would not want to restrict themselves to that alone.14 The likelihood that this is the proper reason is strengthened when it is considered in relation to another change the drafters made in Madison’s text, from “free country” to “free state.” We are not expressly given the reason for that change, either; but most people (including Standard Modeler Malcolm) agree that the reason was to emphasize the state’s separate militias, not the common defense of the country.15 If that is the obvious reason there, it is also the obvious reason for omitting “common defense.”

There are other possible (though less plausible) reasons for the omissions—e.g., to prevent tautology. What is neither warranted nor plausible is Halbrook’s certitude that these words were omitted deliberately to preclude militia-language. The whole context of the amendment was always military. Halbrook cannot effect an alchemical change of substance by bringing two words, “common defense,” near to, but not into, the amendment.

1. Bear Arms. To bear arms is, in itself, a military term. One does not bear arms against a rabbit. The phrase simply translates the Latin arma ferre. The infinitive ferre, to bear, comes from the verb fero. The plural noun arma explains the plural usage in English (“arms”). One does not “bear arm.” Latin arma is, etymologically, war “equipment,” and it has no singular forms.16 By legal and other channels, arma ferre entered deeply into the European language of war. To bear arms is such a synonym for waging war that Shakespeare can call a just war “just-borne arms” and a civil war “self-borne arms.”17 Even outside the phrase “bear arms,” much of the noun’s use alone echoes Latin phrases: to be under arms (sub armis), the call to arms (ad arma), to follow arms (arma sequi), to take arms (arma capere), to lay down arms (arma ponere). “Arms” is a profession that one brother chooses as another chooses law or the church. An issue undergoes the arbitrament of arms. In the singular, English “arm” often means a component of military force (the artillery arm, the cavalry arm).

Thus “arms” in English, as in Latin, is not restricted to the meaning “guns.” The Romans had no guns; and they did not limit arma to projectile weapons (spears, arrows). It meant weaponry in general, everything from swords to siege instruments—but especially shields. That is why the heraldic use of “arms” in English (the very case Stephen Halbrook invokes) refers to shields “coated” (covered) with blazonry.

Of course, even the Latin arma ferre can be used figuratively, metaphorically, poetically (bear arms in Cupid’s wars, animals bear arms in their fighting talons or tusks). But these are extensions of the basic meaning, and the Second Amendment is not a poetic text. It is a legal document, the kind in which arma ferre was most at home in its original sense; a text, moreover, with a preamble establishing a well-regulated militia as the context.

Standard Modelers try to get around this difficulty by seeking out every odd, loose, or idiosyncratic use of “bear arms” they can come up with—as if the legal tradition in which the Second Amendment stands must yield to marginal exceptions, in defiance of the solid body of central reference. Or they bring in any phrase that comes near “bear arms” without being that phrase. Stephen Halbrook cites a law concerning deer hunting that refers to “bearing of a gun” in the hunt.18 Not only is the context different from the amendment’s, but “bearing of a gun” is not the canonical formulation with a plural noun. In Latin a hunter could be seen to carry a bow (arcum ferre) without that altering the military sense of arma ferre.

It is impossible to follow the gun people into every thicket of their linguistic wild-hare chase, but one passage must be considered since it comes up again and again in the new writings. Even the sensible essay in the Tennessee Law Review by Colonel Charles J. Dunlap, Jr., says that “the minority of the Pennsylvania state convention that voted to adopt the Constitution” put “killing game” among the objects of a “right to bear arms.”19 That is now the customary way for the Standard Modelers to refer to the passage at issue: it is the position of “the minority” in the Pennsylvania ratifying convention. That makes it sound like the view of a considerable body of men (though not the majority). Dunlap took his information from an article written in a law journal by Robert Dowlut, the General Counsel of the National Rifle Association—an affiliation that helps explain the wide dissemination of this argument.20

It is true that an omnium gatherum of arguments against the Constitution was hastily assembled and published five days after Pennsylvania’s ratification of the Constitution. The author was probably the propagandist Samuel Bryan, not himself a delegate in the convention, but one who took what the minority delegates gave him, including a hastily scribbled last-minute set of objections raised by Robert Whitehill.21

Whitehill is well described in his Dictionary of American Biography entry:

He was one of the small group which in this period fanned jealousies and suspicions of the Pennsylvania back country into an opposition which was probably the most vehement experienced by any state and nearly resulted in armed conflict…At no period of his official career did Whitehill reflect better his back-country views than as a member of the Pennsylvania convention to ratify the federal Constitution (1787). In the Assembly he sought a delay in the election of delegates…In the convention he resorted to every device to delay and defeat ratification. He insisted that there were inadequate safeguards against a tyranny and on the day of ratification attempted, without avail, to have fifteen articles incorporated as a bill of rights.

Whitehill brought his fifteen proposals into the convention, on the day scheduled for a final vote, in order to abort the process. He made them the basis of a motion to adjourn without voting. The record of the Convention describes the turmoil over this last-minute effort at obstruction:

Some confusion arose on these articles being presented to the chair, objections were made by the majority to their being officially read, and, at last, Mr. [James] Wilson desired that the intended motion might be reduced to writing in order to ascertain its nature and extent. Accordingly, Mr. Whitehill drew it up, and it was read from the chair…22

Whitehill’s motion to adjourn was denied, the majority voted for the Constitution, and Whitehill’s fifteen destructive proposals were never even debated by the convention. Some of Whitehill’s fifteen points resembled other calls for a bill of rights, calls later answered in the first ten amendments; but others were merely frivolous, or were aimed at entirely gutting the draft Constitution. In the latter category was proposal fifteen, which began, “That the sovereignty, freedom, and independence of the several states shall be retained…” (exactly the state’s position under the existing Articles).

Whitehill’s objection to the militia clause of the Constitution was put in these words:

11. That the power of organizing, arming, and disciplining the militia (the manner of disciplining the militia to be prescribed by Congress) remains with the individual states, and that Congress shall not have authority to call or march any of the militia out of their own state, without the consent of such state and for such length of time only as such state shall agree.23

This would not only have canceled the militia clause in the draft Constitution but would have repealed Articles VII and VIII of the Articles of Confederation. Not even Whitehill had any real hope of doing that. It is a measure of his desire to throw up any, even the wildest, objection to the Constitution that he could have drafted this proposal, one surely not backed by others in the minority.24

Following his throw-in-the-kitchen-sink approach, Whitehill introduced some language going back to English gaming laws and “enclosures,” 25 as if hunting were in peril from the Constitution.

8. The inhabitants of the several states shall have liberty to fowl and hunt in seasonable times, on the lands they hold, and on all other lands in the United States not enclosed…

It is in the context of these scattershot objections, hastily assembled to be purely destructive, that we should read the part of Whitehill’s list that gun advocates like to quote as the “minority position”:

7. That the people have a right to bear arms for the defense of themselves and their own state, or the United States, or for the purpose of killing game…

This sentence turns out to be redundant when he goes on, in Proposal 8, to protect a separate right to hunt. He begins a complex sentence with “right to bear arms” and then throws in everything he can think of—illogically, since he is about to take up hunting in a different proposal. He has confused, in his haste, different things—war and killing game—under one head (“bear arms”). He is a desperate man by now, unable to make his own motion coherently enough for the convention to understand it, until he is forced to put it in writing.

It is a sign of the desperation of the Standard Modelers that they take these ill-conceived phrases of Whitehill as the deliberated position of a whole “minority,” and want to make them the text that controls our interpretation of “bear arms” in the Second Amendment—a text which was still to be drafted, debated, and clarified in the entirely military context Madison would give it. Did even Whitehill mean what he was saying? Or, as in his attack on the Articles along with the Constitution, was he just babbling to head off the impending vote? This was not a serious proposal, and it was not treated seriously by the convention. That Bryan included it in his response to the act of ratification just shows that he needed to add quick bulk to a publication that is not itself well organized or particularly coherent, but repetitive, random, full of discordant elements.26

  1. 13

    Stephen P. Halbrook, That Every Man Be Armed. For the motion that failed, see Schwartz, The Bill of Rights, Vol. 2, pp. 1143–1154.

  2. 14

    See Articles of Confederation, draft Articles X, XI, and XII, all of which used “common defence” for confederated action, and Articles VII and VIII as passed. See The Documentary History of the Ratification of the Constitution, edited by Merrill Jensen (State Historical Society of Wisconsin, 1976), Vol. 1, pp. 81, 89. Article VIII stated:

    All charges of war, and all other expenses that shall be incurred for the common defence or general welfare, are allowed by the united states in congress assembled, shall be defrayed out of a common treasury…according to such mode as the united states in congress assembled shall from time to time direct and appoint. [italics added]

    Alexander Hamilton used “common defence” in the same way, in Federalist No. 25 (Jacob E. Cooke, editor, Wesleyan University Press, 1961, p. 158).

  3. 15

    Malcolm, To Keep and Bear Arms, p. 160: “In keeping with state proposals, the word ‘state’ had been substituted for Madison’s ‘country.’ ‘State’ was a more precise term and, since a state was a polity, it could refer either to one state or to the United States.”

  4. 16

    Though the Greek equivalent of arma has a singular (hoplon), meaning shield, the plural (hopla) refers to all kinds of military (including naval) equipment.

  5. 17

    Shakespeare, King John 2.1.345, Richard II 2.3.80. In the last line the emphasis on native (“And fright our native peace with self-borne arms”) shows that Berkeley is describing citizens who bear arms against themselves.

  6. 18

    Halbrook, A Right To Bear Arms, p. 56.

  7. 19

    Colonel Charles J. Dunlap, Jr., “Revolt of the Masses: Armed Civilians and the Insurrectionary Theory of the Second Amendment,” Tennessee Law Review (Spring 1995), p. 650, fn. 35.

  8. 20

    Robert Dowlut, “Federal and State Constitutional Guarantees to Arms,” University of Dayton Law Review (Fall 1989), pp. 62–63.

  9. 21

    See “The Dissent of the Minority of the Convention” (September 18, 1787), in Jensen, editor, The Documentary History of the Ratification of the Constitution, Vol. 2, pp. 617–649.

  10. 22

    Debates of the Convention” (September 12, 1787), in Jensen, editor, The Documentary History of the Ratification of the Constitution, Vol. 2, p. 599.

  11. 23

    Debates” in Jensen, editor, The Documentary History of the Ratification of the Constitution, Vol. 2, p. 598.

  12. 24

    That other members of the minority did not agree with Whitehill’s desire to rescind the Articles is seen in the completely different treatment of the militia also contained in Bryan’s hodgepodge “dissent.” The treatment, on pp. 637–639 of the “Dissent,” says nothing of service beyond state borders, or other powers granted in the Articles.

  13. 25

    Debates,” in Jensen, editor, The Documentary History of the Ratification of the Constitution, p. 598.

  14. 26

    The signers of the dissent were agreeing with the things they had contributed to the whole, not with the parts in discord with their own contributions. (See footnote 24.)

  • Email
  • Single Page
  • Print