The language and grammar of the second amendment

by Keith W.

Introduction
The second amendment is merely one sentence long but yet is deceptively complex
when it comes to understanding its vocabulary, grammar, and meanings. The language
used in the amendment seems so mysterious to the modern reader that this mystery has
given rise to a multiplicity of contradicting interpretations. As a result, there is a
frustrating lack of consensus amongst Americans as to what the amendment says and
what it doesn't say, what it codifies and what it does not codify. The purpose of this
essay is to try to demystify the language of the second amendment, and to determine in
a more clear and straightforward way what the text actually means. Much more
knowledgeable people than me have written literature on the historical, legal, and
political context surrounding the second amendment, but – at least from my searching –
relatively little information can be found focusing upon the language and grammar
themselves. Which is why I have chosen to write this essay and to focus it on the
language, in order to help fill the gap of knowledge in this specific area. I will proceed
to analyze the amendment by breaking it up into its constituent parts, isolating its
individual clauses, phrases, and words. I won’t necessarily analyze the amendment in a
linear, word-by-word order, but will simply break it up according to the order and
groupings which I deem most efficient to clarify what needs to be clarified.

My focus in this essay will be on the grammatical and linguistic elements of the
amendment, rather than focusing on the historical background of the amendment;
although I will explore the history as necessary in order to further illuminate the
grammar and the language. After I have clarified the amendment with regard to its
individual parts, then the meaning of the amendment as a whole will become more clear.
I don’t believe it was the Framers’ intention for this amendment to be an impenetrable
mystery, and thus I seek to help the reader to understand the amendment in the plain
manner in which the Framers would have understood it.

My own personal stance on the gun issue favors gun control over gun rights. I do not
agree with the interpretation of the second amendment that is common among gun
advocates today, and which is upheld by recent Supreme Court cases such as DC v
Heller. However, despite my attitude on guns and gun ownership, I will avoid allowing
my stance to spoil my objectivity in interpreting the amendment's language. Rather
than skewing the amendment’s words to align with my bias, I will seek to let the
amendment speak for itself, and I believe that its words will naturally express
something much different from what gun advocates claim. In the interest of objectivity,
I will even debunk some misinterpretations from the gun control side of the issue as
well.
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As a further note, this essay will include a copious amount of historically-relevant

quotations and excerpts. To help clarify my arguments, I will freely emphasize certain
words in those quotations by using italics. All emphases found in the quotations are my
own emphasis unless stated otherwise. If a certain emphasis within a quotation is
intrinsic to the original text, I will put “(emphasis in original)” at the end of the
quotation.

Part 1: The Arms Clause

The amendment in its entirety goes as follows:

A well regulated Militia, being necessary to the security of a free State, the right
of the people to keep and bear Arms, shall not be infringed.

We can separate the amendment into two main parts: the militia clause ("A well
regulated Militia, being necessary to the security of a free State") and the arms clause
("the right of the people to keep and bear Arms, shall not be infringed"). I find it best to
begin analyzing this amendment by first isolating the arms clause, as it is probably the
part that is most misunderstood.

“The people”
Let's start with the term "the people". Gun advocates tend to make the argument that
the term “the people” as it is used in the Bill of Rights, while unmistakably a collective
term by itself, applies to every citizen on an individual basis. Hence, a right of the
people is a right that can be enjoyed by every individual person that exists among the
people. They often use, as an example, the fourth amendment. The people being secure
in their persons, papers, houses, and effects from unlawful search and seizure, or the
people being free from arrest without probable cause and warrant, can reasonably be
considered an individual right. But on the other hand, the first amendment right to
peaceably assemble cannot really be considered an individual right, since the idea of an
individual assembling somewhere alone is conceptually impossible. There is other
evidence that can be used to argue that the meaning of “the people” can, at least
sometimes, be unequivocally collective in meaning. One example is Article 1, Section 2,
Clause 1 of the Constitution:

The House of Representatives shall be composed of Members chosen every

second Year by the People of the several States, and the Electors in each State shall
have the Qualifications requisite for Electors of the most numerous Branch of the
State Legislature.

As you can see here, there is a clear distinction made between “the people” as a
collective entity, and individual citizens, here referred to as “electors”. The people are
here understood as a collective because no one individual citizen can choose (i.e. elect) a
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member of the House of Representatives; rather, House members are chosen by the
electorate as a whole — the collective of citizens who come to the polls to vote. The most
any one individual citizen can do is merely vote for a House member, not choose. Thus,
we can presume that the same collective sense of the phrase “the people” used earlier in
the body of the Constitution itself, may also be used in the amendments to the
Constitution.

Furthermore, another piece of evidence about the meaning of the phrase “the people”
can be found in a quote from the Minority of the 1787 Pennsylvania Ratifying
Convention:

That the people have a right to bear arms for the defence of themselves and their
own state, or the United States, or for the purpose of killing game, and no law
shall be passed for disarming the people or any of them, unless for crimes
committed, or real danger of public injury from individuals . . . .

For the writer of this excerpt to feel the need to make a distinction between "the people"
and "any of them" indicates that the phrase "the people" is itself a term referring to the
people as a collective entity independent of the individual citizens which comprise that
entity. Thus, the evidence seems to indicate that the phrase “the people”, to the writers
of the Constitution, had a primarily collective meaning, unless specific language or
context indicated otherwise. It would appear that as far as how the term “the people”,
as used in the Bill of Rights, relates to the specific possessor of a stipulated right, the
term alone does not indicate the identity of the possessor. The debate over whether the
term “the people” inherently articulates a collective or individual content appears to be
futile. The term itself is flexible enough to be interpreted either way, and its meaning is
ultimately articulated by the term’s context rather than by the term itself. The possessor
of the right in question is determined more by the nature of the right itself than by the
term used to describe its beneficiary.

“to keep and bear arms”

Next, we discuss the phrase which is probably the most pivotal part of the amendment.
The amendment says that the people have the right "to keep and bear arms". Now, it
seems that most pro-gun advocates would essentially translate this phrase into "to own
and carry weapons (i.e. guns)". They come to this conclusion from a simple process of
reductionist analysis: "to keep" means "to own", and "arms" means "weapons"; "to bear"
means "to carry" and "arms" means "weapons"; therefore, "to keep arms" means "to own
weapons", and "to bear arms" means "to carry weapons". Simple.

However, the problem with this analysis is that we are not dealing with science or
mathematics here, we are dealing with language; and language is often not compatible
with a reductionist interpretation. What the pro-gun advocates probably assume is that
the phrase "to keep and bear arms" essentially consists of a noun, "arms", which is acted
upon by two different verbs, "to keep" and "to bear". As seemingly obvious as this
interpretation is, I believe it is incorrect. I would argue that there is, in fact, no noun at
all within the phrase "to keep and bear arms"; but that this phrase actually consists
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merely of two verbs, along with a conjunction ("and"). I can presume that the phrase "to
keep and bear arms" is merely a contraction of the more complete phrase "to keep arms
and to bear arms", which expresses the verbs "keep" and "bear" in their full infinitive
verb form. This is not an unreasonable assumption, as the arms provision in the 1780
Massachusetts state constitution uses similar wording:

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.

And so does the arms provision in the 1796 Tennessee Constitution:

That the freemen of this State have a right to Keep and to bear Arms for their
common defense.

As further evidence for my presumption, there exist a number of arms provisions which
actually only contain either the phrase “keep arms” or the phrase “bear arms”, but not
both. Early constitutions in states such as Pennsylvania, North Carolina, Vermont,
Kentucky, Louisiana, Indiana, and Connecticut all had arms provisions that mentioned
only the people’s right to “bear arms” but not to “keep arms”. Conversely, the first two
drafts for the 1689 English Bill of Rights mention the people’s right to “keep arms” but
make no mention of their right to “bear arms”. This supports the idea that “keep arms”
and “bear arms” would have been considered to be two separate actions – rather than
one – that could readily be described by two separate infinitive verbs.

Thus, for the sake of clarity in my argument, I will assume that it was the Framers’
implicit intent to word the phrase in the second amendment as "to keep arms and to
bear arms".

Phrasal verbs
Now, why does this make any difference? Well, my point concerns a certain article of
language called a "phrasal verb". Many other languages do not widely use phrasal verbs,
but English is infamous for its abundance and ubiquitous use of them. A phrasal verb is
a phrase of two or more words containing at least one verb and at least one other type of
article of speech, usually a preposition. Some examples of phrasal verbs are: give up,
grow up, calm down, break up, run into, show up, set off, set up, wake up, look into,
turn in, work out, dress up, take up, take off, speed up, slow down, do away with, pass
out, make out, go along with, etc. The entire phrasal verb as a whole serves as a verb,
and all other articles of speech within the phrasal verb are essentially dissolved within
the "verbness" of the phrasal verb. Thus, the preposition "over" in a phrasal verb like
"carry over" is no longer a preposition but merely a function of the phrasal verb; the
preposition "up" in the phrasal verb "blow up" is no longer a preposition but merely a
function of the phrasal verb.
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Now, going back to the subject at hand, it is my argument that the phrase "to keep arms
and to bear arms", instead of consisting of two verbs and a noun, actually consists only
of two verbs, or more specifically, two phrasal verbs: the phrasal verb "to keep arms" and
the phrasal verb "to bear arms". This is an important point, because if this interpretation
is true, then this would refute the pro-gun claim that "the people" have the right "to own
and carry weapons". The pro-gun interpretation construes the phrase in such a way that
the entire phrase revolves around the noun "arms"; the weapons themselves are the
nucleus of this phrase, around which the actions of "keeping" and "bearing" orbit. The
pro-gun advocate makes the concept of being in physical possession of guns as personal
property for personal use to be the focus of this pivotal phrase; however, the irony is
that what they tout as the focus of the phrase in fact does not even exist within the
phrase.

As I explained before, with a phrasal verb, the verb itself is the operative component of
the phrasal verb, and all other articles within it are inoperative. Thus, even though
technically the phrases "to keep arms" and "to bear arms" both contain the noun "arms",
this noun, grammatically speaking, does not exist, as it is effectively deactivated by the
phrasal verb. The result of this is that when we look at the larger statement "the right of
the people to keep and bear arms, shall not be infringed", this statement is not describing
a thing that the people have the right to use, but rather it is describing actions that the
people have the right to do.

So what exactly are the actions being described here? Now, the pro-gun advocate likes
to use the reductionist approach to understanding what it means to keep arms and to
bear arms. However, the reductionist approach does not work, for at least a couple of
reasons. One is because these phrases, as I've explained, are phrasal verbs, and as you
may notice from looking at the example list of phrasal verbs above, such phrases cannot
be understood by taking each word of the phrase, presenting the literal definition of that
word, and then re-combining those literal definitions together to arrive at the true
meaning of the phrase as a whole. If, for example, a romantic couple have been dating,
but they ultimately "break up", we would not conclude that the couple has literally
broken something, which afterwards went in an upward direction. Or if someone told
you to "chill out", you would not think you were being ordered to go outside and cover
your body in ice cubes in order to lower your body temperature. Obviously, many
phrasal verbs don't make sense when interpreted literally; most of them are essentially
idiomatic expressions or figures of speech which only make sense within the cultural
environment that is accustomed to that particular phrasal verb.

There are some phrasal verbs which comprise a verb and a noun; some examples are
phrases like “break ground”, “break bread”, “make camp”, “set up shop”, “gain
ground”, “take flight”, “make love”, “tread water”, “strike gold”, “give birth”, “blow
smoke”, etc. Some phrasal verbs of this kind are notable, here in this essay, for
possessing a similar structure to the two phrasal verbs found in the second amendment:
for example, to “keep watch” or to “keep track” are both of similar grammatical
structure to the phrase “keep arms”; to “bear fruit” or to “bear witness” are both of
similar grammatical structure to the phrase “bear arms”.
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Some phrasal verbs of this type are related to the use of weapons. Take for example the
phrase "open fire". To open fire doesn't mean to take out a lighter and ignite a pile of
flammable debris in order to make a fire. "Open fire" simply means: if you have a gun,
shoot your gun. To "cease fire" doesn't mean to obtain a fire extinguisher and extinguish
the closest fire. It means: if you're shooting your gun, stop shooting your gun.

There are some phrasal verbs which notably contain the noun “arms” in them. To "take
up arms" doesn't mean to literally take a gun in your hand and then raise it high up in
the air. It is an idiomatic expression which means: to initiate armed confrontation
against someone. To “lay down one’s arms” doesn’t mean to literally take your gun and
place it down on the ground; the phrase means: to cease fighting.

I would argue that the phrases "keep arms" and "bear arms" share a similar grammatical
identity as phrases like "take up arms" and “lay down one’s arms”; all four are phrasal
verbs which include a verb and a noun, specifically the noun "arms". We know
intuitively that when someone is going to "take up arms", this action may likely involve
weapons of some kind, but the emphasis is not on the weapons themselves but rather it
is on the action implied by the phrasal verb itself – the noun "arms" does not stand on its
own but is merely dissolved within the action. In other words, it doesn't so much matter
what arms you possess as much as what you are going to do with those arms. The
phrases "keep arms" and "bear arms" possess this same structure; they both indicate an
action which uses weapons but whose purpose extends far beyond the mere use of the
weapons themselves.

“bear arms”
Now, what exactly did it mean for the people to keep arms and bear arms? Well, let's
start with the verb "to bear arms". It is not an idiom that we really use anymore outside
the context of talking about the second amendment. However, there are many
contemporary uses of the phrase in the 18th century, or roughly around that time, which
were used in a similar context as the second amendment. Looking at how people of a
certain time used a term is probably the best way to ascertain the meaning of that term
within that time. While avoiding any biases or jumping to conclusions, one should try
to allow the contemporary text to speak for itself. Thus, here are several examples:

Minority of the Maryland Convention,1788: That no person, conscientiously

scrupulous of bearing arms in any case, shall be compelled personally to serve as
a soldier.

New Hampshire Constitution, 1788: No person who is conscientiously

scrupulous about the lawfulness of bearing arms, shall be compelled thereto,
provided he will pay an equivalent.

Virginia State Ratification Convention, 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.
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James Madison’s June 8, 1789 Proposal: The right of the people to keep and bear
arms shall not be infringed; a well armed and well regulated militia being the
best security of a free country: but no person religiously scrupulous of bearing
arms shall be compelled to render military service in person.

New York Constitution, 1777: That all such of the inhabitants of this State being
of the people called Quakers as, from scruples of conscience, may be averse to
the bearing of arms, be therefrom excused by the legislature; and do pay to the
State such sums of money, in lieu of their personal service, as the same may, in
the judgment of the legislature, be worth.

The above examples are state arms provisions which all include a conscientious objector
clause for those with religious scruples. It wouldn't make any sense for someone to be a
conscientious objector from simply carrying a gun. No reasonable person who considers
himself a conscientious objector would put the emphasis of his objection upon
the carrying of a weapon; it is using a weapon to maim and kill that a conscientious
objector objects to. And that is the kind of conscientious objection that this clause allows
for. "Bearing arms" here clearly refers to the intent or potential of shooting and killing
people, hence the opportunity to opt out of service. Furthermore, some provisions
include a stipulation requiring one to pay a sum of money or hire another person to bear
arms in his place. What sense would it make for the government to require a citizen,
who objects to holding or carrying a gun, to pay a replacement to hold or carry a gun in
his place?

Moreover, another point worth noting is that some commentators have believed that the
phrase “bear arms” refers specifically to rendering military service or serving as a
soldier. But this would seem to be incorrect, as both the above Maryland provision and
the James Madison proposal clearly indicate a distinction between bearing arms and
rendering military service or serving as a soldier. To interpret “bear arms” to have an
inherently military significance would appear to lead to an awkward tautological
wording within these provisions: “That no person, conscientiously scrupulous of serving
as a soldier in any case, shall be compelled personally to serve as a soldier”; “but no person
religiously scrupulous of rendering military service shall be compelled to render military
service in person”. Even though such wording is not logically unsound, it seems to
contradict the founding statesmen’s writing style, which does not typically involve
redundant or clumsy language. With a narrow definition of “bear arms” appearing to
lead to such complications, we should therefore entertain the possibility of a more broad
definition of the term.

Pennsylvania Ratifying Convention, 1787: That the people have a right to bear
arms for the defence of themselves and their own state, or the United States, or
for the purpose of killing game, and no law shall be passed for disarming the
people or any of them, unless for crimes committed, or real danger of public
injury from individuals . . . .

Here it is clear that bearing arms was an action that could be performed in the context of
securing the common defense, or in self-defense, or by hunting wild game.
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James Madison, The Federalist Papers #46: Extravagant as the supposition is, let
it however be made. Let a regular army, fully equal to the resources of the
country, be formed; and let it be entirely at the devotion of the federal
government; still it would not be going too far to say, that the State governments,
with the people on their side, would be able to repel the danger. The highest
number to which, according to the best computation, a standing army can be
carried in any country, does not exceed one hundredth part of the whole number
of souls; or one twenty-fifth part of the number able to bear arms.

Here is another use of the phrase "bear arms"; it is taken from the forty-sixth essay of the
Federalist, by James Madison, where he is comparing the combined military might of all
of the state militias to the might of a federal army. Interpreting "bear arms" to mean
carrying a gun would not make sense in this context. The "number able to bear arms"
clearly is referring to the people of a country capable of military service, separate from
the total population. We can easily infer this, since Madison calculates the maximum
size of a standing army to be 1/100 of the whole national population; he also considers
this quantity to be equal to 1/25 of the number of citizens able to bear arms. Doing the
math, this would make the amount of citizens capable of bearing arms to be a fraction of
25/100, or 1/4, of the total population. If the phrase "bearing arms" means what gun
advocates think it means, surely James Madison would think that more than 1/4 of the
American population was capable of picking up a gun and carrying it around.
Obviously, virtually everyone in the population should be capable of merely carrying a
gun. So clearly, "bearing arms" doesn't mean "carrying a gun". However, alternatively,
we could brainstorm that roughly half of the population is composed of women and the
other half composed of men, and then roughly half of the men would be of qualified age
and physical condition to engage in military service. This leads us to approximately 1\4
of the population being capable of military service, which of course corresponds to the
1\4 of the population which Madison surmised was capable of "bearing arms". Thus,
our conclusion here is that the phrase "bearing arms" was related to performing military
service, not simply carrying a gun.

From the novel Eugene Aram by Edward Bulwer-Lytton, 1832: The dress of the
horseman was of foreign fashion, and at that day, when the garb still denoted the
calling, sufficiently military to show the profession he had belonged to. And well
did the garb become the short dark moustache, the sinewy chest and length of
limb of the young horseman: recommendations, the two latter, not despised in
the court of the great Frederic of Prussia, in whose service he had borne arms.

Here is a fictional story in which a certain soldier is said to have “borne arms” in the
court of Frederic of Prussia. It wouldn’t do Frederic much good to include a soldier in
the service of his court to merely carry a gun around, and nothing more. Clearly “bear
arms” means more than “carry a gun”.

From Antiquities of the Jews, Book 8, by Flavius Josephus: He was a child of the
stock of the Edomites, and of the blood royal; and when Joab, the captain of
David's host, laid waste the land of Edom, and destroyed all that were men
grown, and able to bear arms, for six months' time, this Hadad fled away, and
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came to Pharaoh the king of Egypt, who received him kindly, and assigned him a
house to dwell in, and a country to supply him with food . . .

This excerpt comes from the 1st century Jewish historian Flavius Josephus as he recounts
events from ancient Jewish history. Obviously, the excerpt involves events which
happened long before the Founding era of the United States. However, the relevance
here is in regards to the translation of the excerpt rather than the excerpt itself. This
document was translated from the original Greek into English by William Whiston in
1737, which is, in fact, close to the Founding era of America. As we can see in the
excerpt, Joab is described as devastating Edom and destroying all the men who were
grown and able to bear arms. Given Whiston’s choice of words in his translation, he
makes a clear logical connection between being able to bear arms and being a grown
man. Now, if “bearing arms” merely meant to “carry weapons”, then why would one
need to be a grown man in order to do it? Surely women and young boys should be able
to do something as simple as carry weapons? But nevertheless the context makes it clear
that “bearing arms” is something that only grown men would be expected to be capable
of doing.

Letter from Lord Cornwallis to Lt. Col. Nisbet Balfour, 1780: I have ordered that
Compensation, should be made out of their Estates to the persons who have been
Injured or oppressed by them; I have ordered in the most positive manner that
every Militia man, who hath borne arms with us, and that would join the Enemy,
shall be immediately hanged . . . .

Again, the context here clearly points to more than carrying weapons; “bearing arms”
here clearly involves military service. It doesn’t make sense for a leader of war to want
soldiers executed for defecting to the service of the enemy, but only to carry a gun with
the enemy.

From the 1840 Tennessee Supreme Court case Aymette v State opinion: To make this
view of the case still more clear, we may remark that the phrase, "bear arms," is
used in the Kentucky constitution as well as in our own, and implies, as has
already been suggested, their military use. The 28th section of our bill of rights
provides "that no citizen of this State shall be compelled to bear arms provided he
will pay an equivalent, to be ascertained by law." Here we know that the phrase
has a military sense, and no other; and we must infer that it is used in the same
sense in the 26th section, which secures to the citizen the right to bear arms. A man
in the pursuit of deer, elk, and buffaloes might carry his rifle every day for forty
years, and yet it would never be said of him that he had borne arms; much less
could it be said that a private citizen bears arms because he had a dirk or pistol
concealed under his clothes, or a spear in a cane. So that, with deference, we think
the argument of the court in the case referred to, even upon the question it has
debated, is defective and inconclusive.

Above is the majority opinion of a case in the Tennessee Supreme Court involving a
petitioner who challenged a Tennessee law which banned the carrying of concealed
weapons. The opinion declares that "bear arms" has a military sense, at least in the manner
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in which it is used in the Tennessee Constitution. And the text even goes on to say that the
carrying of a rifle for the purpose of hunting wild game did not live up to even a broader
definition of "bearing arms".

Debate on the Militia and right to keep and bear in the House, August 17, 1789:
The House again resolved itself into a committee, Mr. Boudinot in the chair, on
the proposed amendments to the constitution. The third clause of the fourth
proposition in the report was taken into consideration, being as follows: "A well
regulated militia, composed of the body of the people, being the best security of a
free state, the right of the people to keep and bear arms shall not be infringed; but
no person religiously scrupulous shall be compelled to bear arms."

The above is the beginning of a debate held in the House of Representatives regarding
the construction of the amendments to the Constitution, here specifically addressing
what would ultimately develop into the second amendment. One attendee, Elbridge
Gerry, voices his apprehension concerning the conscientious objector clause in the
amendment as written, claiming that it may enable those in power to “declare who are
those religiously scrupulous, and prevent them from bearing arms”, thus undermining
the militia and necessitating resorting to a standing army, which he considers “the bane
of liberty”. Gerry subsequently suggested altering the conscientious objector clause “to
be confined to persons belonging to a religious sect scrupulous of bearing arms.”
Another attendee, James Jackson, considered it unfair for one group of Americans to
bear the responsibility of defending another group; thus he proposed inserting into the
conscientious objector clause: "upon paying an equivalent, to be established by law."
Roger Sherman, inconclusive about the clause’s wording, advises that the clause not be
written so as to exclude any religious sect in its entirety, as certain men among such
religious sects may wish to bear arms despite the tenets of their group. John Vining
advised that the objector clause simply remain in its original form, disregarding the later
suggestions of the other attendees. His reasoning was that he saw no point in having
the objector clause require the hiring of an equivalent, since as far as the government
was concerned it “was the same as if the person himself turned out to fight.” Now this
particular statement is important, because, in reference to the original wording of the
objector clause, the action in question is “to bear arms”. Thus, Vining here makes the
clear implication that “to bear arms” is “to fight”. The mere carrying of weapons is not
the true import of bearing arms – it is fighting.

What it seems we can infer from these above examples is that "to bear arms" meant a lot
more than just carrying a gun. We can infer that bearing arms was related to the duty of a
soldier, that it was an action that some people may have religious or otherwise
conscientious scruples against, it was an action that one person may see fit to hire someone
else to do in his place, an action that was potentially related to self-defense and hunting
wild game, an action that one might estimate only a relatively small portion of the
country's population would be capable of doing, an action that one would expect only
grown men to be able to do, an action involved in military service, and it involves fighting.
Furthermore, we can make the obvious observation that the phrase contains the word
“arms” in it, which means “weapons”. All of the uses I’ve found for the phrase “bear arms”
seem to imply the use of weapons; I have yet to encounter a use of the phrase that implied
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unarmed combat, such as, for example, two boxers bearing arms against each other inside
a boxing ring, or roosters bearing arms in a cockfight. Thus, from this evidence we may
extrapolate a broad definition of "bearing arms": to engage in armed violence, or armed
hostilities.

An additional point can be made here to further support this definition of “bear arms”
as “engaging in armed violence”. There is a notable essay entitled “What Did ‘Bear
Arms’ Mean in the Second Amendment?” by historians Clayton E. Cramer and Joseph
Olson. In the essay, the writers passionately argue that the traditional meaning of “bear
arms” has always been the purely literal meaning “to carry weapons”, and they push
back against the claim by their opponents that “bear arms” traditionally possessed an
idiomatic meaning of performing military service. Throughout the essay, they quote a
variety of historical documents which use the phrase “bear arms”. One interesting
excerpt they provided was from an 18th century author named John Debrett; the
following is an excerpt from Cramer and Olson’s essay as they quote Debrett:

In Debrett’s Collection of State Papers Relative to the War Against

France (1797), there is a discussion of orders from the French military upon
occupying “the Country beyond the Rhine”:

The inhabitants of the villages, who shall take arms against the French,
shall be shot, and their houses burnt, as shall likewise all who bear arms
without permission from the French generals.

While those who “shall take up arms” would qualify as military action,
“all who bear arms without permission” clearly are not engaged in military
action; the phrase “as shall likewise” tells us that this a different group and
situation. The only way in which those “who bear arms without
permission” can be understood as referring to military units is if French
generals were in the practice of giving permission to civilians to fight
against them.

The excerpt that Cramer and Olson provided does initially appear to corroborate their
claim that “bear arms” did not have a military meaning, but simply referred to the
individual carrying of arms. The military command being quoted does appear to
involve the French occupiers stipulating punishments against the German villagers if
they were to take arms against the French or are caught carrying weapons without the
French’s permission.

However, this interpretation is, in reality, skewed on account of Cramer’s and Olson’s
choice to carefully pull their excerpt out of context. Considering the broader context of
the document the authors are quoting from yields a very different interpretation. The
authors’ excerpt comes from a proclamation made by the French General Jean Baptiste
Jourdan on July 4, 1796. In that proclamation, he appeals to the German inhabitants that
despite his occupation of their country, he means no ill-intent towards them, and will
 12

not plunder their property or burn down their houses, provided they do not take arms
against the French soldiers. General Jourdan then goes on to say:

A regulation, consisting of seven articles, is annexed, which orders the French

troops to observe the strictest discipline. Every soldier who shall plunder any of
the inhabitants shall be put to death. The inhabitants, however, must remain
quiet in their houses, and deliver up their arms: if they are taken flying with their
effects or cattle, they will be arrested, and their property confiscated for the use
of the Republic. The inhabitants of the villages, who shall take arms against the
French, shall be shot, and their houses burnt, as shall likewise all who bear arms
without permission from the French generals.

Now, with the benefit of the broader context, the meaning of Cramer’s and Olson’s
truncated excerpt becomes more clear. The French generals have made clear that they
demand restraint and obedience on the part of both the villagers and the French soldiers
themselves. Villagers who choose to initiate fighting against the French will be killed.
The proclamation then says that “all who bear arms without permission” will also be
killed. Now, for a number of reasons, “bear arms” here cannot be referring to the
villagers carrying weapons. One reason is that it has already been declared that the
villagers are to have their weapons confiscated and are to be confined in their houses;
thus it makes no sense for the French to later stipulate a rule that the villagers are
forbidden from walking around carrying weapons without the French general’s
permission. They aren’t supposed to have any weapons to begin with. And “bear arms”
is unlikely to be referring to the villagers fighting against the French; it would be
redundant, as the villagers have already been warned against “taking arms” against the
French, which carries a similar meaning. And it makes no sense that “all who bear arms
without permission” is referring to the carrying of weapons by the French soldiers, since
all soldiers by definition carry weapons, and thus a soldier need not get permission from
his commanding officer to carry weapons, nor would any commanding officer ever deny
such permission, were it to be required. The only reasonable interpretation here is that
“all who bear arms without permission” is referring to French soldiers who choose to
engage in violence – presumably against the villagers – without the permission of their
commanding officers. This interpretation comports with the declaration by General
Jourdan that the French soldiers are to “observe the strictest discipline” and that soldiers
caught plundering the villagers “shall be put to death”. The idea that soldiers who fight
against the villagers will meet the same demise as villagers who fight against the
soldiers aligns with the spirit of mutual restraint expressed in Jourdan’s proclamation.
Ironically, a quote that these essay-writers thought would support their claim that “bear
arms” means “carrying weapons” ends up actually undermining their position. Here is
yet another historical document in which understanding “bear arms” in an idiomatic
sense is just the more logical approach compared to understanding the phrase in a literal
sense.

This brings to mind a point that Justice Scalia made in his majority opinion for DC v
Heller, making the same essential claim as Cramer and Olson regarding “bear arms”:
 13

The phrase “bear Arms” also had at the time of the founding an idiomatic
meaning that was significantly different from its natural meaning: “to serve as a
soldier, do military service, fight” or “to wage war.” [. . .] But it unequivocally bore
that idiomatic meaning only when followed by the preposition “against,” which
was in turn followed by the target of the hostilities. [. . .] (That is how, for
example, our Declaration of Independence [ . . .], used the phrase: “He has
constrained our fellow Citizens taken Captive on the high Seas to bear Arms
against their Country … .”) Every example given by petitioners’ amici for the
idiomatic meaning of “bear arms” from the founding period either includes the
preposition “against” or is not clearly idiomatic. [. . .] Without the preposition,
“bear arms” normally meant (as it continues to mean today) what Justice
Ginsburg’s opinion in Muscarello said. (emphasis in original)

But as you can see, the term “bear arms” in General Jourdan’s proclamation was not
followed by the preposition “against”, nor was it in turn followed by the target of the
hostilities. “Bear arms” simply meant “engaging in armed violence” and also had a
military implication, entirely on its own without the additional linguistic paraphernalia
that Scalia claimed was necessary. You might say that this example unequivocally
demonstrates Scalia’s claim to be false.

Now that we know the meaning of the phrase “bear arms”, now we must ask: why
would the founding fathers codify in the Constitution a right of the people to engage in
armed violence? Surely, they were not enshrining the right to commit murder, armed
robbery, or any other lawless use of a gun. They could perhaps be referring to self-
defense and hunting, as with the example from the 1787 Pennsylvania Ratifying
Convention; however these particular gun uses are not specifically mentioned, and thus
we can't be certain that the founding fathers intended them.

In what context would it make sense for the American people to engage in armed
violence? This brings us back to the militia clause. It goes: "A well regulated Militia,
being necessary to the security of a free State". This provides some context: it would
make sense for the people to engage in armed violence as part of service in a militia.
The militia was a unit of citizen soldiers who were called into compulsory duty for their
state. They performed military and law enforcement functions for the state government,
and in order to perform this service, militia members were required to obtain a gun and
an adequate amount of ammunition, gunpowder, or other equipment needed to perform
their duty. The militia is also specifically mentioned in Article 1, Section 8, Clauses 15
and 16 of the Constitution:

[The Congress shall have Power] To provide for calling forth the Militia to
execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for
governing such Part of them as may be employed in the Service of the United
States, reserving to the States respectively, the Appointment of the Officers, and
 14

the Authority of training the Militia according to the discipline prescribed by

Congress;

So understanding the nature of the militia and its relation to the government, we can
infer what it meant for the people to "bear arms": it referred to the citizen soldiers of the
militia engaging in the state-sponsored combat commanded of them by the state and
federal government.

“keep arms”
So now, we must ask: what did it mean for the American people to “keep arms"? Even
though gun advocates would argue that "to keep arms" meant owning guns,
contemporary sources from the Revolution era would not comport with this definition.
Here are several examples:

Letter from Samuel Nasson to George Thatcher, July 9, 1787: I find that
Ammendments are once again on the Carpet. I hope that such may take place as
will be for the Best Interest of the whole[.] A Bill of rights well secured that we
the people may know how far we may Proceade in Every Department[,] then
their will be no Dispute Between the people and rulers[.] [I]n that may be
secured the right to keep arms for Common and Extraordinary Occations such as
to secure ourselves against the wild Beast and also to amuse us by fowling and
for our Defence against a Common Enemy[.] [Y]ou know to learn the Use of
arms is all that can Save us from a forighn foe that may attempt to subdue us[,]
for if we keep up the Use of arms and become acquainted with them we Shall
allway be able to look them in the face that arise up against us[.]

This example uses "keep arms" in a manner that suggests more than the mere owning of
a gun but also implies potentially using them for the purpose of hunting, self-defense,
and military service.

Collected Works of James Wilson (1742-1798), Vol. 2: With regard to the first, it is
the great natural law of self preservation, which, as we have seen, cannot be
repealed, or superseded, or suspended by any human institution. This law,
however, is expressly recognised in the constitution of Pennsylvania. “The right
of the citizens to bear arms in the defence of themselves shall not be questioned.”
This is one of our many renewals of the Saxon regulations. “They were bound,”
says Mr. Selden, “to keep arms for the preservation of the kingdom, and of their
own persons.”

In this example, James Wilson quotes a commentator on British law who refers to
citizens keeping arms explicitly for the purpose of defending the kingdom and for the
purpose of self-defense.

Outlines of the Constitutional Jurisprudence of the United States by William

Alexander Duer, 1833: The subordinate privileges of a similar character, to which
 15

the Colonists were entitled in lieu of those natural rights surrendered for the
general benefit, were . . . The right of every individual to keep arms for his defence,
suitable to his condition and degree; which was the public allowance, under due
restrictions, of the natural right of resistance and self-preservation.

Here, the author is speaking about the right of American colonists to keep arms. Many
gun advocates tend to interpret the keeping of arms in the second amendment as an
inherently absolute and unlimited right to weapons, but notice how the right to keep
arms is mentioned here alongside a number of limits and qualifications, including being
“suitable to his condition and degree” – which basically meant appropriate to one’s
status of wealth or land-ownership, and “under due restrictions” – meaning legal
restrictions.

From the novel Eugene Aram by Edward Bulwer-Lytton, 1832: “No, Mr. Aram,”
said Madeline, colouring; “pray do not go yourself: consider, the man may still
be loitering on the road. He is armed—good Heavens, if he should meet you!”

“Fear not, Madam,” said Aram, with a faint smile. “I also keep arms, even in this
obscure and safe retreat; and to satisfy you, I will not neglect to carry them with
me.”

In this example, we have a dialogue between two fictional characters, Madeleine and
Aram. Madeleine warns Aram of impending danger from an armed man, after which
Aram reassures her that he keeps arms. There appears to be a connotation here of more
than just possessing arms, but possessing them in preparation for a distinct purpose.
And the context clearly indicates the possibility of a violent confrontation. Also notice
that Aram uses the phrase “carry arms” separately from “keeping arms”, indicating that
they denote two different ideas.

A law from King George II of Britain (1739): Where any protestant servant, by the
direction or privity of his master, being a papist, shall carry or keep arms, both
master and servant shall be subject to the penalties inflicted by this act.

From this 18th century British law, it can be inferred that keeping arms is different from
carrying arms. Also, the context does not make clear that the person who keeps arms,
the Protestant servant, actually owns the arms that he keeps on his master’s behalf. It’s
quite possible that the master is actually the owner of the arms. From this, it can
potentially be inferred that keeping arms is a different concept from owning arms.

A law from King William III of Britain (1698): No papist shall be employed as a
fowler for any protestant, or under colour thereof keep fire arms, upon penalty of
seizure of said arms, which will become the property of the informer, even if the
arms were in fact the property of some protestant..

In this example, we have a law imposed on Ireland by King William III for the
subjugation of the Papist community. It stipulates that a Papist is not allowed to keep
arms on behalf of a Protestant. If this law is violated, the arms can be confiscated from
 16

the Papist even if they are the property of the Protestant. Similarly to the previous
example, what we can infer from this is that the keeping of arms is separate from the
owning of arms; one can possibly own arms without keeping arms, and one can keep
arms without owning the arms.

First draft of the arms provision of the 1689 English Bill of Rights: It is necessary
for the publick Safety, that the Subjects which are Protestants, should provide
and keep Arms for their common Defence. And that the Arms which have been
seized, and taken from them, be restored.

In this example, we have an early draft of the arms provision from the English Bill of
Rights which was passed by Parliament in 1689. This provision clearly stipulates an
imperative by Parliament requiring certain subjects to “keep arms” and then presents
the object of the keeping of arms to be for the common defense. There was also a second
draft of the arms provision which reads:

That the Subjects, which are Protestants, may provide and keep Arms, for their
common Defence.

Here, the verb is changed from the imperative “should” to the permissive “may”. Even
here, although the imperative language regarding militia duty has been softened
somewhat, the phrase “keep arms” is still used in the context of the action qualified by
the clause “for the common defence”. By contrast, the final version of the arms
provision reads:

That the subjects which are Protestants may have arms for their defence suitable
to their conditions, and as allowed by law.

It is telling that the first draft, which addressed militia duty, used the term “keep arms”,
and even the more permissive second draft, also addressing militia duty, used the term
“keep arms”; but the version which makes no mention of the common defense and
refers only to private gun ownership and self-defense used the term “have arms”. This
seems to suggest that to “have arms” indicates a more general sense of weapon
possession, whereas to “keep arms” indicates a more active and purposeful sense of
weapon possession. In other words, to keep arms is less about the freedom to own or
possess weapons and more about the capacity for the use of the weapons.

Debate on the Militia and right to keep and bear in the House, August 20, 1789:
Mr. [Thomas] SCOTT objected to the clause in the sixth amendment, "No person
religiously scrupulous shall be compelled to bear arms." He said, if this becomes
part of the constitution, we can neither call upon such persons for services nor an
equivalent; it is attended with still further difficulties, for you can never depend
upon your militia. This will lead to the violation of another article in the
constitution, which secures to the people the right of keeping arms, as in this case
you must have recourse to a standing army. I conceive it is a matter of legislative
right altogether. I know there are many sects religiously scrupulous in this
respect: I am not for abridging them of any indulgence by law; my design is to
 17

guard against those who are of no religion. It is said that religion is on the
decline; if this is the case, it is an argument in my favour; for when the time
comes that there is no religion, persons will more generally have recourse to
these pretexts to get excused from bearing arms.

In this example, Thomas Scott objected to a conscientious objector clause as part of the
federal arms provision, on the grounds that excusing those with religious scruples
towards armed combat would violate the article of the Constitution which secured the
people's right to keep arms. Scott believed that this violation of the right to keep arms
would be brought to fruition by the country's recourse to a standing army. Now, if Scott
believed that "keeping arms" merely meant to own guns, why would he consider the
country's use of a standing army to be in conflict with the people's ability to own guns?
This makes no sense, as there is no reason why American citizens couldn't own guns for
personal use at the same time that a federal army is the sole protector of the nation (as is
mostly the case today). Clearly, by "keeping arms", Thomas Scott was likely referring to
Article 1, Section 8, Clauses 15 and 16 of the Constitution, which discussed the duties
and makeup of the militia, as well as the militia's role in the defense of both the state and
the nation. He, like many founding fathers, did not separate militia service as a duty
from militia service as a right, just as any other right promised to the people. He
believed that allowing compulsory militia service to become too lax as to have to resort
exclusively to the federal army would deprive the people of their right to perform their
civic duty.

Hence we can infer that "to keep arms" did not refer to owning guns; it referred, at least,
to the possessing of guns, and there is also good reason to assume its usage in the
second amendment is primarily connected with the topic of militia service. As we did
with "bearing arms", it only makes sense to understand "keeping arms" by first looking
within the context of the militia.

Militiamen of the Revolutionary era were under compulsory duty to train and fight for
the common defense of their state. When showing up for duty, they did not have
government-owned weapons handed out to them for temporary use (as is the case with
military service of today), but rather they were required to obtain their own guns and
keep them at home, and then bring the guns with them to militia duty. It is quite
possible that it was this specific connotation that the second amendment meant by "keep
arms". A relevant quote regarding this issue can be found in a letter written from
Thomas Jefferson to John Cartwright on June 5, 1824:

The constitutions of most of our states assert that all power is inherent in the
people; that they may exercise it by themselves, in all cases to which they think
themselves competent, (as in electing their functionaries executive and legislative,
and deciding by a jury of themselves, both fact and law, in all judiciary cases in
which any fact is involved) or they may act by representatives, freely and equally
chosen; that it is their right and duty to be at all times armed; that they are entitled to
freedom of person; freedom of religion; freedom of property; and freedom of the
press.
 18

Here, Thomas Jefferson seems to be indicating more than just the mere freedom to carry
a gun; he describes it not just as a right but as a duty. But why would the American
people have a duty to carry a gun? One would not be said to have, for example, a duty
to speak freely, a duty to practice religion, a duty to peaceably assemble, a duty to
demand a warrant before search or seizure of property, or a duty to receive a speedy
trial and an attorney in court. If “keep arms” is merely the freedom to own a gun, what
sense would it make to refer to this as a duty?

Furthermore, if “keep arms” is the freedom to own a gun – as the gun advocate would
suggest – what would it mean to own a gun “at all times”? Property ownership is not
some kind of time-varying phenomenon. It is not fluctuating or cyclical or seasonal. It
is constant. You either own something or you don’t; if you own something, that
ownership doesn’t change from one time to the next.

Moreover, reading the above quote, Jefferson was, by his own admission, listing many
of the same civil rights which are codified in most state constitutions; so we may surmise
that the phrase "to be at all times armed" referred to either the keeping of arms or the
bearing of arms that is written about in most of the arms provisions of those
constitutions. But we know that in using the phrase “to be at all times armed”, Jefferson
was likely not referring to “bearing arms”, since we’ve already confirmed that that
phrase meant something else: to engage in armed violence. Surely, Jefferson wasn’t
prescribing Americans to be engaged in militia combat at all times. Of the two phrases
in question, the phrase “to keep arms” is the only one which can reasonably be
connected to Jefferson’s phrase “to be at all times armed”. This quote from Jefferson
illustrates, therefore, that people of his time would not interpret “to keep arms” to refer
to merely owning a gun. But what the phrase was more likely referring to is the practice
of militia members in keeping or carrying their weapons at all times as part of their civic
duty.

In many contemporary documents, when American statesmen would speak of general

gun use, they would, more often than not, use other terms besides “keep arms”. For
example, in the English Bill of Rights of 1689, the final version of the arms provision
reads,

That the subjects which are Protestants may have arms for their defence suitable
to their conditions, and as allowed by law.

Within the second draft of the Virginia Constitution, Thomas Jefferson says,

No freeman shall ever be debarred the use of arms [within his own lands or
tenements].

A 1788 quote attributed to Richard Henry Lee says,

 19

These corps, not much unlike regular troops, will ever produce an inattention to
the general militia; and the consequence has ever been, and always must be, that
the substantial men, having families and property, will generally be without
arms, without knowing the use of them, and defenceless; whereas, to preserve
liberty, it is essential that the whole body of the people always possess arms, and
be taught alike, especially when young, how to use them; nor does it follow from
this, that all promiscuously must go into actual service on every occasion.

So it would seem that “have”, “use”, and “possess” were common verbs to employ with
regards to arms when referring to the general use of guns. However, when the verb
“keep” is used in conjunction with “arms” in contemporary documents, the context
more often than not implies not just simple ownership of guns but the use of them to do
violence, such as can be seen in the quotes from Samuel Nasson, Thomas Scott, James
Wilson, and Edward Bulwer-Lytton. Contemporary uses of the phrase “keep arms”
consistently occur in the context of engaging in violence, such as army service, militia
duty, self-defense, or even hunting.

So what it seems that we can gather here is that the phrase “keep arms”, in its broadest
interpretation, means: to possess weapons with the intent or potential to use them for
violence. Or to put it another way, it doesn’t just mean to “keep weapons” but has the
connotation of to “keep weapons handy”, “keep weapons ready”, “keep weapons in store”,
etc. Hence, “keep arms” does not refer to just any and all gun possession or gun
ownership or gun use. One does not keep arms in order to form a gun collection as a
hobby; one does not keep arms in order to shoot them at a firing range or go skeet
shooting just for fun.

Arms-phrases
“To keep arms” appears to have an idiomatic meaning; hence, like all idioms, it
possesses an overall meaning that is more than the sum of the words within the phrase.
We can compare “keep arms” to another phrase like, for example, “take arms” or “take
up arms”. “To take up arms”, as the words imply, involves taking weapons; but it
meant more than just the act of grabbing a weapon to, say, do some target shooting or
fowl hunting. The phrase implied the connotation of taking weapons with the intent to
do violence against someone. “To arm oneself” means to equip oneself with a weapon.
But it usually implies more than just to obtain a weapon just for any general reason,
such as to do some recreational shooting; it implies the idea of obtaining a weapon in
preparation for using it to fight. “To arm up” means to acquire or build up an arsenal of
weapons. But it means more than just acquiring weapons just to collect guns as a hobby
or to shoot guns at a firing range for recreation; it carries the connotation of building up
an arsenal with the intent or potential to do violence with such weapons. “To lay down
one’s arms” implies putting one’s weapons down; but it implies the connotation of more
than just putting your weapons down for any random reason, such as because you are
done using them or because your weapons are too heavy and you need to rest. The
phrase implied the connotation of disarming oneself in order to put an end to conflict or
violence. To be “under arms” means to be currently equipped with a weapon. But it
means more than just to be equipped with a weapon just for any general purpose; it
 20

connotes being equipped in order to fight. The phrase “to arms!” might be used on its
own as an exclamation as an order to equip oneself with a weapon; one might also
encounter the phrase “to arms” used as a kind of adverb within a construction like “call
to arms” or “trained to arms” or “go to arms” or “run to arms”. And these all imply
equipping oneself with a weapon for the purpose of fighting. The phrase “at arms” may
be found within a phrase like “man-at-arms”, which refers to a soldier, one who
obviously is equipped and prepared to fight. The phrase “of arms” in a phrase like “by
force of arms” is an adjectival phrase which refers to something involving weapons, but
the connotation clearly involves violence. The phrase “up in arms” indicates rising up
to action with a weapon in one’s possession; but the idea is that one is not rising up with
a weapon for just any reason – one is rising up in order to do violence. The term
“brothers-in-arms” includes the phrase “in arms”, which indicates more than that the
brothers are brothers who carry weapons together, but that they are brothers that fight
together.

Phrases like these have a deep-seated history in the English language. One notable
example can be found in the famous soliloquy from William Shakespeare’s Hamlet:

To be, or not to be, that is the question:

Whether 'tis nobler in the mind to suffer
The slings and arrows of outrageous fortune,
Or to take arms against a sea of troubles
And by opposing end them. . . .

Is the speaker, Hamlet, speaking of fighting against a sea of troubles, or is he referring to

just gathering up some weapons and taking them into the sea?

One particularly rare and obscure phrase of this type is "follow arms". I’ve found only a
handful of literary sources which use this phrase. There is at least one Shakespearean
example of this term, found in the play The Life and Death of King John:

Upon thy cheek lay I this zealous kiss

As seal to this indenture of my love:
That to my home I will no more return
Till Angiers and the right thou hast in France,
Together with that pale, that white-faced shore,
Whose foot spurns back the ocean’s roaring tides
And coops from other lands her islanders,
Even till that England, hedged in with the main,
That water-wallèd bulwark, still secure
And confident from foreign purposes,
Even till that utmost corner of the West
Salute thee for her king. Till then, fair boy,
Will I not think of home, but follow arms.

Apparently, “following arms” involves a kind of duty or obligation which pulls one
away from home.
 21

Another example can be found in the anonymous 16th century play Faire Em,
apocryphally attributed to Shakespeare:

I cannot, Madam, tell a loving tale

Or court my Maistres with fabulous discourses,
That am a souldier sworn to follow arms:
But this I bluntly let you understand,
I honor you with such religious Zeal
As may become an honorable mind.

Apparently, “following arms” is what a soldier may swear himself to do.

Multiple instances of the phrase happen to show up in the early 17th century play The
Knight of the Burning Pestle by Francis Beaumont. Here is one of them:

Sir Knight, this mirth of yours becomes you well,

But to requite this liberal courtesy,
If any of your Squires will follow arms,
He shall receive from my heroic hand
A Knighthood, by the virtue of this Pestle

Apparently, a squire may choose to “follow arms” and subsequently be promoted to

knighthood.

Relatively little appears to be known about this phrase. However, context seems to
indicate that it means something like "to do one's military duty" or “to pledge oneself to
a military life”. But would it make more sense to interpret the phrase literally? Is, for
example, the second excerpt instead talking about a soldier who has sworn to literally
follow weapons around (whatever that could mean)? Is the third excerpt really about
squires being given knight-status in return for literally chasing a sword?

Phrases like “take arms”, “follow arms”, “bear arms”, etc., seem to have been common
in the English language from at least as far back as the 15th century until at least as
recent as the 19th century, although they have mostly fallen out of use in recent times.
According to historian Gary Wills in his 1995 essay “To Keep and Bear Arms”, this
family of phrases is largely the result of a well-established English adoption of Latin
terminology. Speaking of “bear arms”:

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. 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.” Even outside the phrase “bear arms,” much of
the noun’s use alone echoes Latin phrases: to be under arms (sub armis), the call
 22

to arms (ad arma), to follow arms (arma sequi), to take arms (arma capere), to lay
down arms (arma ponere). (emphasis in original)

So as you can see, rather than being a miscellaneous collection of idioms which
coincidentally feature the word “arms”, these phrases tend to form a kind of unified
family of idioms sharing a common etymological descent.

With all of these “arms-phrases”, there is a recurring pattern. Each phrase seems to be
composed of two linguistic components: a denotational component and a connotational
component. The denotational component is the aspect in which each phrase means
more-or-less what it clearly says: e.g. to take arms is to take arms, to bear arms is to bear
arms, etc. However, with each phrase there is a connotational aspect in which each
phrase means something over and beyond what it clearly says. These phrases are all
essentially figures of speech which involve understatement. It's a bit like when people
speak of "sleeping with someone" as a way of saying "having sex with someone". If you
have sex with someone, you will typically do it while lying down in a bed, much like
what you do when you are simply sleeping, and after you are done having sex you may
even ultimately sleep together. But the idea is that “sleeping with someone”, in the
idiomatic sense, involves a lot more than just sleeping. Or for anyone familiar with the
Bible, it ubiquitously uses idioms like “know” or “lie with” as euphemisms for sexual
intercourse. The idea is that when people have sex they will typically lie down together,
such as in a bed, and they will certainly be getting to know each other; but obviously the
true meaning of the term is not in the denotation but in the connotation. Or when you
say someone “passed on”, as a way of saying that a person had died. You aren’t saying
they passed on to, say, a different job, or passed on to a different city or a different
country to take up residence. The idea is that something far greater has happened: they
have passed on from the land of the living – they’re dead. The true meaning of these
idioms is not in their relatively modest direct denotation, but in their more extreme
indirect connotation. The same is true with arms-phrases.

Accordingly, “keep arms” follows the pattern of this family of idiomatic phrases
involving the word “arm” or “arms” in the phrase. To “keep arms” carried the general
meaning of “to be in possession of weapons”; however, it extended beyond this basic
meaning to involve the connotation of possessing weapons with the intent or potential
to use them for violence. And to “keep arms” did not refer to the technical ownership of
a weapon but only the physical possession of it in readiness for some future violence or
hostilities. “Bear arms” also follows the pattern of this family of arms-phrases. When an
individual “bears arms”, he may literally bear – hold or carry – weapons on his person
during the act; but as we’ve previously determined, to bear arms meant more than just
to bear a weapon, but to bear that weapon while in the act of violence or combat. Thus,
“bearing arms” is a kind of understatement of the actual meaning of the phrase, much
like how “sleeping together” is an understatement for the act of sexual intercourse, or
how to “pass on” is effectively an understatement for the act of being deceased.

The essence of an idiom

 23

Idioms can be tricky, because they are essentially a lie – a phrase that does not truly
mean what it says. If we were to take a phrase like “to lay down one’s arms”, we must
keep in mind that it does not mean in essence to put one’s weapons down. As an analogy,
say two groups of soldiers are fighting each other with guns and knives. A leader of one
group calls out to the other group and proposes that they make an agreement that both
groups lay down their arms. In response, everybody disarms, throwing away all their
weapons. However, after the mutual disarmament, both groups convene together and
begin to square up in a fighting stance, and they begin an empty-handed brawl with
their bare fists. In this analogy, both groups have completely missed the essence of what
it means to “lay down one’s arms”.

Conversely, let’s say the same scenario occurs. But when the groups agree to lay down
their arms, all the soldiers instead keep all their weapons on their person, with guns
loaded and ready to fire. However, they subsequently put an end to their conflict and
each go their separate ways. In this case, both groups, while perhaps not capturing the
fullness of the idiom “lay down one’s arms”, have certainly captured the spirit and
essence of the idiom.

As another analogy, let’s say a certain young man is asked if he would like to exercise
his right to bear arms. He says, “Absolutely.” He then goes to a gun shop and
purchases his favorite choice of gun, also buying a holster to go with it. The man then
goes about his business, walking around in public, openly carrying a gun on his hip. He
never needs to use his gun, but he enjoys the sense of security it gives him to be able to
“bear arms” in self-defense. Conversely, another young man has joined the army while
his country was at war. Although having received some combat training, the man has
decided to take a non-combat role as a combat medic. However, during one particular
battle, the man was separated from the rest of his troop and trapped behind enemy lines.
He is unarmed. He proceeds to make his way back to his army’s camp by stealthily
sneaking through the enemy territory. As he does this, he uses certain unarmed
techniques he learned in his training, such as choke-holds and neck-snapping techniques,
in order to quietly neutralize enemy soldiers who block his path or pose the danger of
sounding an alarm. Through cunning and perseverance, he finally makes it out of the
enemy’s territory and back to safety.

Now, based on what we know so far about the phrase “bear arms”, I would pose this
challenge: between these two analogies, which man, in the more substantive way, has
truly “borne arms”?

The anomaly of “keep arms”

An important thing to note about the phrase “keep arms” is that it appears to not
properly be a part of the arms-phrase family, in that it does not appear to have derived
from a preceding Latin phrase, as are phrases like “bear arms”, “take arms”, “follow
arms”, “lay down one’s arms”, etc. The way the phrase is used in contemporary
documents, it appears as a kind of “honorary” arms-phrase, which developed through
alternative channels to arrive at a status of being comparable to the proper arms-phrases
 24

of Latin origin. I have developed a kind of hypothesis that may explain this linguistic
development.

Verbs in general are very changeable and adaptable, essentially the shapeshifters of the
grammar family. For example, a verb can “transform” into an adjective by being used in
its participle form (e.g. “The child comforted the scared puppy”), and a verb can
“transform” into a noun by being used in its gerund form (e.g. “I find running to be a
great workout”). A verb can also transform back and forth between its two intrinsic
modes: transitive and intransitive; and which form it takes depends on the context. You
can take a sentence like: “The student got on stage and sang beautifully.” Here the verb
“sang” is intransitive. Alternatively, take this sentence: “The student got on stage and
sang the national anthem beautifully.” In this case, the verb “sang” is transitive. Like a
chameleon, the verb simply changed its form in response to its surroundings – in this
case, whether the verb has an object or not.

Just as a single-word verb, like “sang”, can take the form of either transitive or
intransitive, a phrasal verb also possesses the ability to cross a kind of threshold between
a verb transitively acting upon a noun, and a verb joining with a noun to form an
intransitive verb. Some verb-noun groups are fixed securely behind a “hard” threshold
in the intransitive phrasal verb territory, such as phrases like “take flight” or “make
love”; “flight” and “love” are both abstract nouns that cannot actually be “taken” or
“made” in a direct, literal sense. However, take phrases such as “set up camp”, “set up
shop”, “break bread”, “strike gold”, “tread water”; these phrases can potentially pass
back and forth easily between the threshold of transitive and intransitive. For example,
depending on the context, you could “break bread” with someone, intransitively and
figuratively, or you could also break actual bread with someone transitively and literally.
While hiking in the outdoors, you could eventually “set up camp” in an intransitive
sense, or you could literally set up (a) camp. While in an argument with someone, you
could “drive home” a really important point, or in an alternative sense, you could get in
your car and just . . . drive home. You could “strike gold” in a figurative sense, or while
mining for gold you could literally strike gold. These kinds of verb-noun groups can
easily be conceived of either way. “Keep arms” seems to possess this kind of “soft”
threshold. It’s possible that the verb simply started as a direct, transitive act of keeping
arms, but with enough repetition, the verb crossed the soft threshold into effectively
becoming an intransitive phrasal verb in its typical usage.

In a number of different fields or industries, it is possible for a group of words involving

a verb and a noun to be so commonly used within that context that it may, for the sake
of convenience of language, develop from a transitive verb usage to become an
intransitive phrasal verb. For example, out of the seafaring industry may come words
like “set sail”, “make port”, or “drop anchor”; out of the outdoorsman industry may
come terms like “set up camp”, “make camp”, or “break camp”; out of the construction
industry may come a term like “break ground”; out of the merchant industry may come
a phrase like “set up shop”; out of the agriculture industry may come “bear fruit”; out of
the gold-mining industry may come “strike gold”. And of course, the entirety of the
arms-phrase family, derived form Latin, likely came out of the military industry. The
term “keep arms” perhaps need not apply commonly to soldiers in a regular army, since
 25

being armed is a given when one is a soldier. But in a world of citizen soldiers – such as
in America around the Revolutionary era – whether a citizen keeps arms or not is an
important distinction to make. Only someone who keeps arms – not necessarily owns
arms – can contribute to the common defense in a militia. Although “keep arms” does
not appear to be a proper arms-phrase, we can infer from its proximity to the proper
arms-phrase “bear arms” in many state arms provisions that it is closely associated with
them. There appears to be no hard evidence that “keep arms” was viewed officially as a
phrasal verb rather than a normal transitive verb, but the common manner of its use
seems to point to an intransitive understanding. The phrase might appear to sometimes
be used transitively, such as in this 1695 law issued by William III of England:

Every papist who shall have or keep any arms or ammunition, or who shall refuse
to declare what arms or ammunition they or any other to their knowledge shall
have, or shall hinder the delivery thereof to the said justices, or being summoned,
shall refuse to appear or make discovery under their oath, shall forfeit, if a peer
or peeress, for the first offence, one hundred pounds sterling, and for a second
offence, suffer praemunire.

One giveaway for the transitive use of “keep arms” here is that the verb “keep” is clearly
qualified by the noun objects “arms” and “ammunition”. But on the other hand, we
may find the phrase being used intransitively, such as in this excerpt from Justice of the
Peace and Parish Officer by Richard Burn (1845):

It is, however, laid down by Serjeant Hawkins, that there may be a forcible
detainer, whether the entry were forcible or not . . . and that if a lessee, after the
end of this term, keep arms in his house to oppose the entry of the lessor, though
no one attempt an entry . . . or if a tenant at will should detain with force after the
will has been determined, he will be guilty of a forcible detainer, and that so
would a lessee resisting with force a distress for rent . . . .

This particular usage of “keep arms” appears to be used intransitively, largely on

account of the phrase being qualified by a reason or purpose (i.e. to oppose the entry of
the lessor), rather than by one or more objects.

So as we can see, “keep arms”, much more so than “bear arms”, appears to be subject to
this “soft threshold” between transitive and intransitive. And although “keep arms”
lacks the intrinsic association with the military context as do the Latin-derived arms-
phrases, the phrase does seem to frequently cross that threshold in order to – more
casually and informally – be used for a similar function. We can see abundant evidence
of this in, for example, numerous state arms provisions, the second amendment itself,
and also the two aforementioned drafts of the 1689 English Bill of Rights. When looking
at the phrase “to keep and bear arms”, it is easy to construe the “keep arms” as transitive
because of its lack of obvious idiomatic function, and thus, by association, attribute this
same transitive-ness to “bear arms”. But we should instead interpret these phrases in
the opposite direction: that “bear arms” is unequivocally idiomatic and intransitive by
way of its Latin origin, and thus we should interpret that “keep arms” is in this case, by
association, idiomatic and intransitive.
 26

A compound idiom
If you will notice, “keep arms” and “bear arms” are very closely related to each other in
their practical effect. After all, in order for one to bear arms, one must necessarily keep
arms, and one cannot be said to be keeping arms unless one is prepared to use the
weapons to bear arms. This is likely the reason why the phrases are so frequently seen
paired together in contemporary sources. It would seem that “keep arms” is to “bear
arms” a bit like what “shield” is to “sword” or what “thread” is to “needle”: each item
exists independently of the other, yet in common use they tend to be uttered in a paired
state. My interpretation is that the phrase “the right to keep arms and to bear arms” or,
alternatively, “to keep and bear arms” is not actually an idiomatic phrase unto itself, but
is a conjunction of two phrases: “to keep arms” and “to bear arms”. I would suggest
that the phrase “to keep arms and to bear arms” (or “to keep and bear arms”) is
equivalent, grammatically speaking, to a commonly employed phrase such as “to lie
down and to fall asleep” (or “to lie down and fall asleep) or “to go home and to go to
bed” (or “to go home and go to bed”). These are essentially compound idioms, idioms
that are each the conjunction of two separate idioms. In each compound idiom, each
individual idiom is independent of the other. You can fall asleep without lying down,
and you can lie down without falling asleep. You can go to bed without going home,
and you can go home without going to bed. But these concepts within these compound
idioms often happen together and are uttered together, and thus can effectively form a
compound idiom. (For what it’s worth, the phrase “to go home and go to bed” is
probably closer grammatically to “to keep and bear arms”, since this phrase, like “to
keep and bear arms”, is composed of two phrasal verbs which are each coupled with a
noun.)

On Thomas Scott
Now, knowing the meaning of the phrases “keep arms” and “bear arms”, there is an
important point that should be addressed. In the excerpt from the House debate quoted
earlier, Thomas Scott uses both the terms “keeping arms” and “bearing arms”. It is
important to note that the theme of this particular debate was the statute that would
eventually come to be known as the second amendment. With this in mind, would it not
be prudent to assume that the sense of these terms as they are used within this debate on
the second amendment is the same sense of these terms as they appear in the second
amendment itself? When Scott refers to “keeping arms”, it is clear from the context that
“keeping arms” was meant to have a militia significance, as he is presumably referring
to the clause of the Constitution which provides “for organizing, arming, and
disciplining, the Militia”. And when he surmises that the inclusion of a conscientious
objector clause may tempt some citizens to feign religious scruples in order to be
excused from bearing arms, he clearly understands “bearing arms” to refer to rendering
militia service. Hence, what clearer evidence could there be regarding the meaning of
the phrase “to keep and bear arms” in the second amendment? If we are looking for
some kind of clarifying glossary for the terms used in the second amendment, what
better glossary could there be except for the very debates and discussions by the
founding fathers associated with their very creation of the amendment itself? Can any
 27

more argument reasonably be made, on the part of the gun advocate, that “to keep and
bear arms” originally referred to the ownership and public carry of guns for purely
civilian purposes?

An unlimited right?
Some gun advocates are of the belief that because the noun “arms” is in the second
amendment that therefore it is physical arms as personal property which is being
protected and promised on behalf of the citizen. They believe that access to physical
guns is explicitly the right which “shall not be infringed”, and that therefore the
amendment indicates an unlimited right to the ownership and carrying of guns. Some
have suggested that the amendment’s categorical and unqualified language in reference
to “arms” implies that every citizen has a right to as many weapons as they wish, and
whatever types of weapons they wish: handguns, shotguns, assault rifles, miniguns,
flamethrowers, tanks, fighter jets, attack helicopters, battleships, cruise missiles, nuclear
warheads, etc.

On the other side of the issue, I have heard arguments from gun-control advocates
suggesting that the particular “arms” which the Framers were guaranteeing the people’s
right to is limited to the kinds of arms which the Framers themselves would have used:
muskets, flintlock rifles, flintlock pistols, etc. Hence, modern rifles and handguns –
whether semi-automatic or automatic – are not constitutionally protected.

Frankly, I believe both sides of the issue are mistaken here. As we have established,
there is, in fact, no noun at all within the phrase “to keep and bear arms”, but in fact
these are two phrasal verbs which effectively mean “to have custody of weapons in
preparation for violence” and “to engage in armed violence”, respectively. Now if this
is how we are to understand what these terms mean, then we can no longer assume that
gun owners possess an unlimited right to do anything. Since “to bear arms” means “to
engage in armed violence”, surely we do not interpret this to mean that Americans
possess an unlimited right to pick up a weapon and go out and engage in violence.
Surely the founding fathers did not seek to enshrine bloody chaos and pandemonium
into the Constitution? This cannot be the case, for at least the fact that the Constitution
specifically tasks the militia “to execute the Laws of the Union”, not to defy them; and to
“suppress Insurrections”, not to start them. With basic common sense, we understand
that the people have the right to bear arms – in other words, to engage in armed violence
– within the context of the state-appointed militia. And if it is within the context of the
militia that we are to understand the people’s uninfringeable right to bear arms, then it
stands to reason that it is within this same context that we are to understand the people's
right to keep arms. It doesn't make sense that the people should be guaranteed the
limited right to engage in armed violence within the context of militia duty, but then –
within the same tersely-worded phrase – the people should be guaranteed an unlimited
right to keep arms outside the context of the militia. It only makes sense that if we must
constrain the meaning of “bear arms” within a militia context, that we should also
constrain the meaning of “keep arms” within a militia context. Therefore, we are to
understand the people's uninfringeable right to keep arms – to have custody of weapons
for violence – to exist within the context of militia duty. The second amendment protects
 28

the people's right to keep arms in the same sense that Thomas Jefferson meant to keep
arms in his letter to John Cartwright, and in the same sense that Thomas Scott used the
phrase “keep arms” in the quote from his Constitution debate.

“Bear arms” is the key

It is worth noting here that the phrase “bear arms” could probably be considered, in a
sense, the key to unlocking the meaning of the mystery that is the second amendment.
By comparison, when we look at the rights enumerated in the first amendment, we tend
to look at them as rights that are granted by the government carte blanche, more-or-less.
The rights to religion, free speech, peaceable assembly, free press, petitioning the
government, are all generally understood as being absolute and unconstrained, having
rare exceptions in light of only the most extreme conceivable circumstances. There is
naturally the temptation to also view the second amendment in the same light. If one
were so inclined, one could possibly entertain the idea that the right to keep arms is a
right that is free of qualifications, conditions, or contextualization, and that it should be
construed in the broadest sense possible. However, this absolutely cannot be done with
the right to bear arms. Since to bear arms is to fight, bearing arms must necessarily be
contextualized within some specific institution or function. The right to bear arms
absolutely cannot be interpreted in a broad sense. The narrowness by which we are
forced to view the bearing of arms also forces us to view the entire amendment narrowly.

Quantity vs. Quality

Here is another important grammatical point. As previously mentioned, the phrases “to
keep arms” and “to bear arms” are actions. And this means they do not, grammatically
speaking, involve any nouns. Something we can draw from this is that because the
phrases are only actions without nouns, that therefore the phrases possess only a
qualitative content, and possess no quantitative content. Gun advocates claim that the
phrases “keep arms” and “bear arms” imply that they have an unlimited right to access
weapons. However, it does not make any more sense to have the unlimited right to
keep and bear arms than it makes sense to have the unlimited right to exercise any other
phrasal verb. A gun advocate claiming he has the unlimited right to “keep arms” is like
saying that he has the unlimited right to calm down, or an unlimited right to cheer up,
or to call out, or to back up, or to get along, or to keep up, or to let go, or to mull it over,
or to throw away, etc. When one understands the language, it is actually quite
nonsensical for one to be said to have an unlimited right to keep arms, or an unlimited
right to bear arms. Both “keep arms” and “bear arms” imply actions, not things. Being
actions, they are qualitative in nature, and are not subject to quantitative measurement.
You can’t keep arms more, or keep arms less; you can’t bear arms more, or bear arms
less. You can just either keep arms or you can not keep arms; you can bear arms or you
can not bear arms.

And likewise, when gun advocates claim that they have an unlimited right “to keep and
bear arms”, this is comparable to saying that they have the unlimited right “to open and
 29

cease fire” or the unlimited right “to take up and lay down their arms”. It is devoid of
real meaning.

Furthermore, in addition to misinterpreting “to keep and bear arms” as possessing a

noun rather than being purely of a verb nature, they also misinterpret this phrase as
being literal rather than idiomatic. Thus, for the gun advocate to interpret “the right of
the people to keep and bear arms shall not be infringed” to mean “the right of the people
to own and carry guns shall not be infringed”, is a bit like if they interpreted “the right
of the people to open and cease fire shall not be infringed” to mean “the right of the
people to start fires and put out fires shall not be infringed”, or if they interpreted “the
right of the people to take up and lay down their arms shall not be infringed” to mean
“the right of the people to pick up their guns and then lay their guns back down shall
not be infringed”. Understanding “to keep and bear arms” literally is simply missing
the point.

The qualifying of verbs

Another important point here about the grammar of the phrases “keep arms” and “bear
arms” is that, as phrasal verbs, they are both intransitive verbs. There are two main
kinds of verbs: transitive verbs and intransitive verbs. A transitive verb is a verb that
acts upon an object, typically a noun. Examples are: “The soccer player kicked the ball”
or “I am eating my dinner”. An intransitive verb is a verb that expresses an action
without the need of any object. For example: “The old wooden floor creaked loudly” or
“The business is thriving”. “Keep arms” and “bear arms” are of the latter type, the
intransitive verb. As explained before, they are both phrasal verbs, and thus the noun
within the phrase is not itself the object of the verb, but rather the noun is effectively a
part of the verb. Neither “keep” nor “bear” actually are acting upon, or describing a
relationship with, “arms”; in both cases, the entire phrase is the verb.

This is important because if one wanted to qualify a verb representing an action, the
manner of that qualification may vary depending on whether the verb is transitive or
intransitive. Let’s say you wanted to give someone the right or permission to do
something, and that action involves acting upon an object; if you were to somehow
qualify the scope of this action, you would likely qualify it in terms of details or types of
the object in question. For example, let’s say I am giving you the right to go to a bed; this
involves an action described by a transitive verb: the verb “go” is acting upon the noun
“bed”. Then, if you were to inquire regarding the scope of this right, you would
probably ask something like, “What bed can I go to?” Then, in order to qualify the
scope of your right, I might list various types of beds: a twin bed, king size bed, queen
size, futon, water bed, air bed, bunk bed, memory foam bed, sleeping bag, etc. However,
let’s say I am giving you the right to go to bed; this is now an action described by an
intransitive phrasal verb: the verb “go” has no actual object, as the noun “bed” is only
part of the verb itself. If you were to inquire into the scope of your right to go to bed, it
wouldn’t really make sense to then ask, “What bed can I go to?”, as that question would
be besides the point of the right I’ve given you. The right I’ve given you actually has
nothing to do with beds, per se; therefore a discussion of types of beds lies outside the
scope of the right. Since I have only given you the right to do something, and have not
 30

addressed the things which you are able to do that action to or with, it would only make
sense that, in qualifying this right, the right would be qualified in terms of reasons or
purposes. Hence, you might ask, “For what reasons may I go to bed?” Then, I might
qualify your right to go to bed by listing a number of different reasons: when you’re
sleepy, when you’re tired, when your head hurts, when you’re feeling sick, when you’re
reading a book, when you’re watching TV, when you’re deep in thought, etc. Given the
nature of the right which I’ve granted, it would be irrelevant to list types of beds, or
sizes of beds, or perhaps beds belonging to certain people you may want to go to bed
with.

A similar issue exists in relation to the right to keep and bear arms. Gun advocates are
under the mistaken belief that the rights granted to them by the second amendment are
transitive, when in fact the rights are actually intransitive.

What this means is that if we are to talk about the scope of the right to keep and bear
arms, according to the manner in which the right was established, that right cannot be
qualified in terms of the supposed object (i.e. weapons), but rather the right must be
qualified in terms of the reasons or purposes for the action in question. We can see this
in action when looking at the arms provisions in some of the individual state
constitutions around the time of the federal Constitution. Here are several examples:

Massachusetts Constitution, 1780: The people have a right to keep and to bear
arms for the common defence.

Tennessee Constitution, 1796: That the freemen of this State have a right to Keep
and to bear Arms for their common defense.

North Carolina Declaration of Rights, 1776: That the People have a Right to bear
Arms for the Defense of the State . . . .

Connecticut Constitution, 1818: Every citizen has a right to bear arms in defense
of himself and the state.

Indiana Constitution: 1816: That the people have a right to bear arms for the
defense of themselves, and the state . . . .

Ohio Constitution, 1851: The people have the right to bear arms for their defense
and security . . . .

Pennsylvania Constitution, 1776: That the people have a right to bear arms for
the defence of themselves and the state . . . .

Vermont Constitution, 1777: That the People have a Right to bear Arms, for the
Defence of themselves and the State . . . .

Pennsylvania Constitution, 1790: That the right of citizens to bear arms, in

defence of themselves and the state, shall not be questioned.
 31

Pennsylvania Minority Constitution, 1787: 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 purposes of killing game . . . .

As you can see, there is some variation in the wording in these statutes; however, the
basic pattern is consistent. Each statute establishes the basic right to keep and bear arms,
and then may go on to qualify this right with additional purposes. There is no mention of
the number of guns or types of guns a citizen can have. The arms provisions were not,
for example, written like this: "That the People have a right to keep and bear arms in the
form of pistols, muskets, rifles, swords, and knives." The provisions are not stated or
qualified in a manner that would indicate actions described by transitive verbs acting
upon objects, which could themselves be quantified, or qualified in terms of the
identities of objects. This is further evidence that the rights to keep arms and to bear
arms were understood to be intransitive and qualitative. They were primarily about
actions rather than things.

One interesting observation in furtherance of this point is a comparison of the arms

provisions in a few successive versions of the Missouri Constitution. The arms
provision in the original 1820 Missouri Constitution reads:

That the people have the right peaceably to assemble for their common good,
and to apply to those vested with the powers of government for redress of
grievances, by petition or remonstrance; and that their right to bear arms, in
defense of themselves and of the state, cannot be questioned.

The arms provision in the 1875 Missouri Constitution reads:

That the right of no citizen to keep and bear arms in defense of his home, person
and property, or in aid of the civil power, when hereto legally summoned, shall
be called in question; but nothing herein contained is intended to justify the
practice of wearing concealed weapons.

And the arms provision in the current Missouri Constitution, as amended in 2014, goes
as follows:

That the right of every citizen to keep and bear arms, ammunition, and
accessories typical to the normal function of such arms, in defense of his home,
person, family and property, or when lawfully summoned in aid of the civil
power, shall not be questioned. . . .

As you can see here, the meaning of “keep and bear arms” in the current provision has
changed. Whereas earlier versions of the arms provision clearly understood the phrase
to convey an intransitive verb, the meaning has now shifted to become a transitive verb.
The older provisions qualified the right to keep and bear arms with purposes; the new
provision qualifies the right to keep and bear arms with things.
 32

The same trend can be seen in the progression of US Supreme Court cases involving the
second amendment. The court opinions in US v Cruickshank (from 1876) and Presser v
Illinois (from 1886) both use the phrase “bear arms” in a clear intransitive sense. And
even in some other state Supreme Court cases, such as the previously-quoted Aymette v
Tennessee (from 1840), the idiomatic and intransitive nature of the phrase was
understood. But then in the Supreme Court case US v Miller (from 1939), there appeared
to be a shift in meaning, since the court opinion twice makes the error of employing a
transitive sense:

The Court cannot take judicial notice that a shotgun having a barrel less than 18
inches long has today any reasonable relation to the preservation or efficiency of
a well regulated militia, and therefore cannot say that the Second Amendment
guarantees to the citizen the right to keep and bear such a weapon. . . . In the absence
of any evidence tending to show that possession or use of a "shotgun having a
barrel of less than eighteen inches in length" at this time has some reasonable
relationship to the preservation or efficiency of a well regulated militia, we
cannot say that the Second Amendment guarantees the right to keep and bear such
an instrument.

Here, the verbs “keep” and “bear” are being used as if they are transitive verbs that each
have a direct object of their action. It deserves to be pointed out that the aforementioned
Supreme Court cases which correctly utilized these verbs were from the 19th century,
while US v Miller occurred in the 20th century. Both of these examples – the progression
of Missouri Constitutions and the progression of Supreme Court cases – points to a
trend that has occurred in the interpretation of this phrase. Apparently, sometime
between the 19th and 20th century, society has changed its understanding of the phrase
“to keep and bear arms”. The phrase appears to have lost its identity as a set of
intransitive verbs, as well as losing its identity as a pair of idioms – idioms which
characteristically possesses both a denotational and connotational compononent. The
phrase has somehow now metamorphosed into just a set of simple verbs possessing
only a denotation.

This interpretive technique of understanding older terminology by way of employing a

modern style of speech is dangerous because it opens up a text to interpretation that is
an absurd corruption of its actual meaning. Imagine, for the sake of argument, that the
arms clause of the second amendment reads as follows: “the right of the people to take
arms shall not be infringed.” Also, let’s say that society has forgotten or thrown away
the original idiomatic meaning of the phrase “take arms”, i.e. “to prepare to fight”. This
would open up the possibility of courts and legislatures beginning to interpret from the
second amendment that every American citizen has the unlimited right to take any
weapon that one may come across, even to the extent of borrowing a weapon without
permission, or even stealing it. Thus, American citizens begin taking the liberty of going
to any gun store or gun show and exercising their right to “take arms”. They feel
entitled to go up to any police officer or armed security guard and “take arms”. Every
powerful weapon a citizen comes across which catches one’s eye is fair game in
exercising the right of “taking arms”. As absurd as this scenario would be, it is
 33

technically no different from the scenario in which people think that the right to “bear
arms” gives them the unlimited right to carry weapons.

Also imagine this scenario: there is a young child who has just witnessed a murder. You
pick up the child and hold him in your arms. You carry him away from the scene of the
crime to a place of safety. Someone walks up to you and asks, "What are you doing with
that child?" You then respond by saying, "I am bearing witness to this child." That
would be an improper usage of the phrase "bear witness". That phrase doesn’t mean to
literally pick up and carry a witness. It means “to observe something and be able to
testify to it”. The misinterpretation may seem absurd, but it is essentially what happens
when gun advocates walk around with a gun in their possession and call it “bearing
arms”. Holding and carrying around a gun is not bearing arms, any more than holding
and carrying around a witness is bearing witness.

There are many phrasal verbs that could be used to illustrate the current corruption of
the terms “keep arms” and “bear arms”. Let’s say, your employer at your new job says
to you, “I’m looking forward to your hard work here bearing fruit.” It would not make
sense for you to then interpret your task to be to start collecting apples, bananas,
strawberries, and oranges from the cafeteria and then carrying them around in the
workplace. You would probably get fired. Or let’s say you are with a group of people
who are trekking through a forest filled with dangerous wildlife, and at nightfall you set
up camp so the group can sleep until morning. The group decides to take turns keeping
watch throughout the night, and you volunteer to take the first shift. The group will
become very angry with you in the morning if they find out that you had just slept
throughout the whole night after unfastening someone’s watch from their wrist and
then keeping it in your pocket. It makes no more sense to view arms as the object of
“keep arms” nor as the object of “bear arms”, any more than it makes sense to view fruit
as the object of “bear fruit” or to view a watch as the object of “keep watch”.

Clearly it is important to preserve the contemporary meaning and grammar of terms in

Founding era documents, rather than trying to understand them through the lens of
modern linguistic conventions.

It is important to note that in interpreting the phrase "to keep and bear arms", there are
three main misconceptions that are commonly made. One is that the phrases are
understood each as a verb embodied within a single word ("keep" and "bear"), when
instead the phrases are both phrasal verbs which are embodied within a phrase
comprising one verb and one noun. Second is that "keep arms" and "bear arms" are
commonly understood literally when they should rather be understood idiomatically.
Third is that the verbs “keep” and “bear” are being understood as transitive verbs
whose object is the noun “arms”, when in actuality the verbs “keep” and “bear” are
intransitive verbs and have no object, as the word “arms” in both phrases is merely a
function of the verb itself.

“shall not be infringed”

 34

Positive and negative declarations

The arms clause of the second amendment concludes with the phrase “shall not be
infringed”. Now, to understand what this means, it is important to understand a certain
concept. There appear to be two main types of declarations that are stipulated in
constitutions and bills of rights. I will call them “positive declarations” and “negative
declarations”. A positive declaration declares the existence of a power, in the case of a
government, or a right, in the case of citizens. A positive declaration is a statute that
positively establishes the power or right which the entity in question is entitled to. On
the other hand, a negative declaration is a statute that does not itself establish a right
which the entity in question is entitled to, but rather declares the negation of a power or
right in regards to that entity. In the case of a government, a negative declaration is a
limitation on its power, or a restriction on its power to influence the rights of its
subordinates; and in the case of a citizen, it is a restriction or prohibition on the citizen’s
freedom.

If you’ll notice, all of the state arms provisions that I listed earlier are all positive
declarations: the wording of them declares and establishes the right that the people have.
As a matter of fact, if you were to browse through all of the state constitutions that were
written around the time of the nation’s founding, you will notice that this is the general
pattern followed in all of them. They will often say something like: “That the people
have the right to x” or “The people have the right to x” or “Every citizen has the right to
x”.

On the other hand, the Bill of Rights does not exclusively consist of positive declarations,
but rather it primarily is composed of negative declarations. First, consider the wording
from Article 1, Clause 8 of the 1818 Connecticut Constitution:

The people shall be secure in their persons, houses, papers, and possessions,
from unreasonable searches, or seizures . . . .

Now compare the way this was worded to the wording from the federal fourth
amendment:

The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated . . . .

Next, consider Article 11 of the 1776 Pennsylvania Constitution:

That in controversies respecting property, and in suits between man and man,
the parties have a right to trial by jury, which ought to be held sacred.

Now compare this to the wording of the federal seventh amendment:

In suits at common law, where the value in controversy shall exceed twenty
dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall
 35

be otherwise reexamined in any court of the United States, than according to the
rules of the common law.

You will notice that while the state statute established the right of trial by jury, the
seventh amendment stipulates that the right of trial by jury shall be preserved. In other
words, this is a negative declaration, in that it does not establish the right but preserves
the pre-existing right. This negative declaration also promises that the federal
government shall not violate or overturn a previous ruling from a state court.

Next, consider Articles 2, 12, and 16, respectively, of the 1776 Pennsylvania Constitution:

That all men have a natural and unalienable right to worship Almighty God
according to the dictates of their own consciences and understanding: And that
no man ought or of right can be compelled to attend any religious worship, or
erect or support any place of worship, or maintain any ministry, contrary to, or
against, his own free will and consent: Nor can any man, who acknowledges the
being of a God, be justly deprived or abridged of any civil right as a citizen, on
account of his religious sentiments or peculiar mode of religious worship: And
that no authority can or ought to be vested in, or assumed by any power
whatever, that shall in any case interfere with, or in any manner control, the right
of conscience in the free exercise of religious worship.

That the people have a right to freedom of speech, and of writing, and publishing
their sentiments; therefore the freedom of the press ought not to be restrained.

That the people have a right to assemble together, to consult for their common
good, to instruct their representatives, and to apply to the legislature for redress
of grievances, by address, petition, or remonstrance.

Now, compare this to the wording of the federal first amendment:

Congress shall make no law respecting an establishment of religion, or

prohibiting the free exercise thereof; or abridging the freedom of speech, or of the
press; or the right of the people peaceably to assemble, and to petition the
government for a redress of grievances.

Following the negative declaration prohibiting Congress from acknowledging a state

religion, the remainder of these rights are negative declarations which correspond
almost exactly to the positive declarations which appeared in the Pennsylvania
Constitution. Even beyond these several examples above, an observation of the Bill of
Rights makes clear that the document is generally composed of negative statements
rather than positive statements. The overall business of the Bill of Rights is to declare
what powers Congress does not have more so than to declare what rights the people do
have.
 36

Now, let us return to the amendment which is the focus of this essay. I previously listed
several arms provisions from several state constitutions. Any one of them could be
compared in their wording to the second amendment, which reads:

A well regulated militia, being necessary to the security of a free state, the right of
the people to keep and bear arms, shall not be infringed.

As we can see, the second amendment is a negative declaration. While most of the state
arms provisions stipulate that the people of the state “have” the right to keep and bear
arms, the second amendment makes no such claim. It is of the family of statutes in the
Bill of Rights which acknowledges a right that has been established by the states, and
then promises to preserve it, or to refrain from prohibiting, abridging, violating, or
infringing it. A negative declaration does not establish or grant a right by preserving it
or not infringing it, any more than by preserving or not knocking down a hornet’s nest,
you are in fact establishing the hornet’s nest. The second amendment does not grant the
right of the people to keep and bear arms – that had already been accomplished by the
state constitutions. The second amendment only guarantees that the federal government
shall not infringe that right.

This interpretation is explicitly corroborated by at least one Supreme Court case: United
States v. Cruikshank. The opinion in that ruling supports the idea of a dichotomy of
positive and negative declarations:

The government of the United States is one of delegated powers alone. Its
authority is defined and limited by the Constitution. All powers not granted to it
by that instrument are reserved to the States or the people. No rights can be
acquired under the Constitution or laws of the United States, except such as the
government of the United States has the authority to grant or secure. All that
cannot be so granted or secured are left under the protection of the States.

And later, the opinion addresses the issue of the second amendment:

The second and tenth counts are equally defective. The right there specified is
that of “bearing arms for a lawful purpose.” This is not a right granted by the
Constitution. Neither is it in any manner dependent upon that instrument for its
existence. The second amendment declares that it shall not be infringed; but this,
as has been seen, means no more than that it shall not be infringed by
Congress. . . .

So as you can see, at least as late as 1876, when this case was ruled, it was understood
that the second amendment was a negative declaration, and citizens would depend on
their rights to keep and bear arms to be granted and protected by their respective states.
It was also understood that there was not meant to be any conflict between the powers
of the federal and state governments, with respect to their abilities to grant rights. As
Cruikshank stated:
 37

The people of the United States resident within any State are subject to two
governments: one State, and the other National; but there need be no conflict
between the two. The powers which one possesses, the other does not. . . . This
does not, however, imply that the two governments possess powers in common,
or bring them into conflict with each other. It is the natural consequence of a
citizenship which owes allegiance to two sovereignties, and claims protection
from both.

There would be no conflict for the state government to grant a right to its people not
already granted by the federal government. There would be a pointless redundancy for
the federal government to grant a right to the people already granted by the state
government. And there would be a conflict, and possible undermining of state
autonomy, for the federal government to grant a right to the people withheld by the
state government.

This concept of there being a dichotomy of positive declarations and negative

declarations is hinted at even within the debates of the founding fathers. The concept is
fundamentally rooted in a certain philosophy of government touched on by John
Marshall in a debate in the Virginia Ratifying Convention on June 14, 1788:

The state governments did not derive their powers from the general government;
but each government derived its powers from the people, and each was to act
according to the powers given it. Would any gentleman deny this? He demanded
if powers not given were retained by implication. Could any man say so? Could
any man say that this power was not retained by the states, as they had not given
it away? For, says he, does not a power remain till it is given away? The state
legislatures had power to command and govern their militia before, and have it
still, undeniably, unless there be something in this Constitution that takes it
away.

Essentially, all power, in theory, derives from the people; and the people, in the interest
of the public good, relinquish from themselves specific powers and give them to a
higher authority – the state government. And in turn, the states, when they ratified the
Constitution, relinquished some of their specific powers and gave them to the federal
government by which to govern the states. The federal government possessed no more
power than specifically given to it by the states, as the states possessed no more power
than specifically given to it by the people. Power that was not given away simply
remained with the entity from which it rightfully originated. Ultimately, a positive
declaration applied to a government was such a delegation of power, and conversely a
negative declaration applied to a government was an explicit clarification of the lack of
such delegation of power. The Framers tended to refer to what I call negative
declarations as “negative clauses”. An example of this is from Patrick Henry during the
same aforementioned debate:

But the right interpretation (and such as the nations of the earth had put upon
the concession of power) was that, when power was given, it was given
exclusively. He appealed to the committee, if power was not confined in the
 38

hands of a few in almost all countries of the world. He referred to their candor, if
the construction of conceded power was not an exclusive concession, in nineteen
twentieth parts of the world. The nations which retained their liberty were
comparatively few. America would add to the number of the oppressed nations,
if she depended on constructive rights and argumentative implication. That the
powers given to Congress were exclusively given, was very obvious to him. The
rights which the states had must be founded on the restrictions on Congress. He
asked, if the doctrine which had been so often circulated, that rights not given
were retained, was true, why there were negative clauses to restrain Congress. He
told gentlemen that these clauses were sufficient to shake all their implication;
for, says he, if Congress had no power but that given to them, why restrict them
by negative words? Is not the clear implication this–that, if these restrictions were
not inserted, they could have performed what they prohibit?

Negative declarations are also alluded to in other contemporary documents, such as the
New York ratification of the Constitution on July 26, 1788:

That the Powers of Government may be reassumed by the People, whensoever it

shall become necessary to their Happiness; that every Power, Jurisdiction and
right, which is not by the said Constitution clearly delegated to the Congress of
the United States, or the departments of the Government thereof, remains to the
People of the several States, or to their respective State Governments to whom
they may have granted the same; And that those Clauses in the said Constitution,
which declare, that Congress shall not have or exercise certain Powers, do not imply that
Congress is entitled to any Powers not given by the said Constitution; but such Clauses
are to be construed either as exceptions to certain specified Powers, or as inserted merely
for greater Caution.

Richard Henry Lee refers to the “negative clause” in Federal Farmer #16, dated January
23, 1788:

The first point urged, is, that all power is reserved not expressly given, that
particular enumerated powers only are given, that all others are not given, but
reserved, and that it is needless to attempt to restrain congress in the exercise of
powers they possess not. This reasoning is logical, but of very little importance in
the common affairs of men; but the constitution does not appear to respect it
even in any view. To prove this, I might cite several clauses in it. I shall only
remark on two or three. By article 1, section 9, “No title of nobility shall be
granted by congress.” Was this clause omitted, what power would congress have
to make titles of nobility? in what part of the constitution would they find it? The
answer must be, that congress would have no such power — that the people, by
adopting the constitution, will not part with it. Why then by a negative clause,
restrain congress from doing what it would have no power to do? This clause,
then, must have no meaning, or imply, that were it omitted, congress would
have the power in question, either upon the principle that some general words in
the constitution may be so construed as to give it, or on the principle that
congress possess the powers not expressly reserved.
 39

As another example, Alexander Hamilton, in Federalist Papers #32, makes reference to

certain “negative clauses” stipulated in Article 1, Section 10 of the Constitution, which
specifically limit the powers of the state government, in this case rather than limiting the
federal government:

The necessity of a concurrent jurisdiction in certain cases results from the

division of the sovereign power; and the rule that all authorities, of which the
States are not explicitly divested in favor of the Union, remain with them in full
vigor, is not a theoretical consequence of that division, but is clearly admitted by
the whole tenor of the instrument which contains the articles of the proposed
Constitution. We there find that, notwithstanding the affirmative grants of
general authorities, there has been the most pointed care in those cases where it
was deemed improper that the like authorities should reside in the States, to
insert negative clauses prohibiting the exercise of them by the States. The tenth
section of the first article consists altogether of such provisions.

Incidentally, the Constitution contains clear listings of positive and negative declarations.
For example, the entirety of Article 1, Section 8 consists of positive declarations of
Congress. Article 1, Section 9 consists of negative declarations of Congress. And Article
1, Section 10 consists of negative declarations of the state governments.

With the aforementioned examples, it is clear that the idea of a “negative clause” – or
negative declaration – was very present in the consciousness of the Framers. In regards
to the second amendment, It seems that gun advocates want to have their cake and eat it
too: they want to say that the second amendment prevents the government from
infringing on their right to keep and bear arms, while also saying that the second
amendment is itself what gives them the right to keep and bear arms. Both of these
cannot happen simultaneously. A “negative clause” such as the second amendment was
designed to restrain Congress’s ability to influence the people’s right to keep and bear
arms, and thus to strengthen the states’ ability to influence that right. If gun advocates
want to appeal to the “operative clause” of the second amendment as the basis of their
right to own a gun, then they must admit to the “negative clause” nature of the
amendment which the founding father’s intended when they concluded it with the
phrase “shall not be infringed”; and they must admit that the amendment guarantees no
such right to own a gun. And if they want to appeal to the idea that the second
amendment guarantees the government’s non-infringement on their right to own a gun,
then they must cease to appeal to the federal government and look to state and local gun
regulations for the ensuring of that right.

Constitutional carry
The discussion regarding the meaning of the phrase "shall not be infringed" is important
for at least one significant reason. There exists a growing principle in government
known as "constitutional carry". This principle says that the second amendment does
not allow government restrictions on gun rights. The principle views "the right to keep
and bear arms" as meaning "the right to own and carry guns"; thus within this concept, it
 40

is unconstitutional for a state to impose barriers, such as training or licensing

requirements, to gun ownership and the carrying of guns in public. However, this
understanding of the second amendment is illogical, as the amendment is a negative
declaration, and as such does not establish or guarantee any right, but merely promises
the non-interference with the states' own arms provisions. A statute designed as a
protection of a state-given right from federal meddling cannot somehow be twisted into
a principle to protect a federal-given right from state-meddling. And as we saw
previously, those state arms provisions may involve a variety of different qualifications,
such as for the purpose of common defense, self-defense, or hunting.

In addition, some constitutions made even more specific qualifications in their arms
provisions:

1812 Louisiana Constitution: The free white men of this State, shall be armed and
disciplined for its defense . . . .

1834 Tennessee Constitution: That the free white men of this State have a right to
Keep and to bear arms for their common defence.

1838 Florida Constitution: That the free white men of this State shall have the right
to keep and to bear arms, for their common defense.

1861 Arkansas Constitution: That the free white men and Indians of this State have
the right to keep and bear arms for their individual or common defence.

The state had the power to specify qualifications for the nature of the people’s arms-
bearing right, and it also had the power to specify the groups of people who possessed
the right. In some cases, slaves may be excluded, or women may be excluded, or certain
racial groups may be either included or excluded in regards to the arms provision.
Moreover, some states actually contained no arms provision at all in their constitutions;
this would include the states of Maryland, New Jersey, New York, Minnesota, Iowa, and
California. All of this further demonstrates that the substance of “the right of the people
to keep and bear arms” is the prerogative of the state government and is not within the
power of the federal government. Contrary to the apparent view of gun advocates,
there was no one monolithic right to keep and bear arms that the people of the United
States possessed and of which the federal government was the official protector. The
nature of the right simply varied by state. Hence it would simply be impossible for
there to exist one universal right to keep and bear arms that applied to the whole nation,
and also satisfied the desires of every individual state government. A “universal” right
to keep and bear arms would inevitably have a scope of qualifications that would be too
broad for some, but too narrow for others; it would potentially deprive rights to persons
that the state would prefer to possess the right, or bestow the right to those whom the
state would rather deprive.

Not only does the second amendment not ensure a right to keep and bear arms – that is,
the right to keep weapons in preparation for hostilities and then to engage in hostilities
using those weapons – but it also does not ensure the right to bear arms for any
 41

particular qualification of the right. It makes no sense for a statute designed for the
purpose of withholding intervention with regards to a right, to itself not only intervene
in regards to that right, but to establish the right, and to enumerate and guarantee all of
the qualifications of the right. Constitutional carry should not exist.

The essence of the right to keep and bear arms

While discussing the variety of qualifications in state arms provisions, an important
point should be addressed here. If we look at the various state constitutions, we notice
that every state constitution that had an arms provision – some didn’t – stipulated a
right to keep and bear arms “for the common defense” or “in defense of the state” or
some equivalent wording. In other words, all of the state arms provisions had
qualifications concerning the militia. Notably fewer of the state arms provisions
qualified a right to keep and bear arms for self-defense; and only in the ultra-rare case –
namely the Minority of the 1787 Pennsylvania Ratifying Convention – was it stipulated
the right to keep and bear arms for the personal purpose of hunting. With this
consideration in mind, we must ask ourselves: why would the spirit of the second
amendment embody anything other than the spirit of what was embodied generally in
the state arms provisions? We can clearly see that the primary purpose and focus of the
state arms provisions was the militia. That is also to say, the primary purpose and focus
of the people’s right to keep and bear arms was the militia. If the primary purpose and
focus of the state-defined right of the people to keep and bear arms was generally
understood to be the militia, then it only stands to reason that the militia was likewise
the primary purpose and focus of the second amendment itself, which existed to
preserve this right.

Therefore, it is inappropriate to construe the second amendment to primarily focus upon

individual, private gun ownership and gun use, which DC v Heller has fallaciously done.
Heller has committed the incomprehensible error of interpreting the second amendment
to primarily concern personal gun use, with militia considerations being a relative
afterthought. However, as I have just explained, this could not be further from the truth.
Heller would say that the second amendment is about the right of the people to self-
defense. But what we must understand is that, to whatever extent the second
amendment is about the people’s right to self-defense, it is to an even greater extent
about the people’s right to their common defense.

Part 2: The Militia Clause

“A well regulated militia”

Now we move on to the militia clause. The first term written in the clause is the term
"well-regulated". It is a term commonly used in the 18th century; and contrary to one's
immediate assumption, it does not specifically mean "subject to rules, laws, or
 42

restrictions", as in the sense of firearm regulations. Some contemporary sources can

shed light on its real meaning. A great resource on views about the militia and the
meaning of the term "well-regulated" is Federalist Papers #29 by Alexander Hamilton.
Here are a couple of excerpts which may shed light on the term's meaning:

It requires no skill in the science of war to discern that uniformity in the

organization and discipline of the militia would be attended with the most
beneficial effects, whenever they were called into service for the public defense.
It would enable them to discharge the duties of the camp and of the field with
mutual intelligence and concert an advantage of peculiar moment in the
operations of an army; and it would fit them much sooner to acquire the degree
of proficiency in military functions which would be essential to their usefulness.
This desirable uniformity can only be accomplished by confiding the regulation
of the militia to the direction of the national authority. It is, therefore, with the
most evident propriety, that the plan of the convention proposes to empower the
Union "to provide for organizing, arming, and disciplining the militia, and for
governing such part of them as may be employed in the service of the United
States, RESERVING TO THE STATES RESPECTIVELY THE APPOINTMENT OF
THE OFFICERS, AND THE AUTHORITY OF TRAINING THE MILITIA
ACCORDING TO THE DISCIPLINE PRESCRIBED BY CONGRESS.

If you will notice, Hamilton in this excerpt directly quotes Article 1, Section 8, Clauses 15
and 16 of the Constitution. However, a certain portion of that quote he puts in all
capitals (that emphasis by capitalization is Hamilton's, not mine). It is my
understanding that he is emphasizing this portion because this is the object of his
previous point that the "regulation" of the militia should be under the direction of the
Union. This emphasized portion includes the concept of training and disciplining, but
more broadly it suggests the overall ordering, structuring, and organizing of the militia
with regards to that training and disciplining. We can also infer this same meaning from
another excerpt from the same document:

To oblige the great body of the yeomanry, and of the other classes of the citizens,
to be under arms for the purpose of going through military exercises and
evolutions, as often as might be necessary to acquire the degree of perfection
which would entitle them to the character of a well-regulated militia, would be a
real grievance to the people, and a serious public inconvenience and loss.”

So once again, being "well-regulated" appears to transcend the "military exercises and
evolutions" themselves, but rather embodies the very ordering and structuring from
government which would implement such exercises and evolutions. Thus, my
definition of "well-regulated" would be "subject to adequate order, structure, and
organization". And within the context of the second amendment, we can understand a
"well-regulated" militia to be a militia subject to the kind of ordering stipulated in
Article 1, Section 8, Clauses 15 and 16 of the Constitution, which placed the militia under
the shared authority of both the federal and state governments. The "well-regulated"
militia was also subject to the regulations of the Militia Act of 1792, which was
established the year after the ratification of the Bill of Rights, and which conscripted
 43

eligible adult men into seasonal training; prescribed required weaponry and equipment;
designated unit functions such as infantry, cavalry, and artillery; and prescribed the
structuring of military units into particular companies, battalions, regiments, brigades,
and divisions. What follows is that the “well-regulated militia” is the militia that is
under government control, organization, and leadership, and not any kind of
independent, citizen-run militia.

“Keep arms” revisited

Incidentally, it is worth noting here that the Militia Act helps to illuminate for us the
meaning of the term “keep arms” as it exists in the second amendment, as the Act
explicitly informs the militia member what particular arms to keep:

That every citizen, so enrolled and notified, shall, within six months thereafter,
provide himself with a good musket or firelock, a sufficient bayonet and belt,
two spare flints, and a knapsack, a pouch, with a box therein, to contain not less
than twenty four cartridges, suited to the bore of his musket or firelock, each
cartridge to contain a proper quantity of powder and ball; or with a good rifle,
knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his
rifle, and a quarter of a pound of powder; and shall appear so armed, accoutred
and provided, when called out to exercise or into service, except, that when
called out on company days to exercise only, he may appear without a knapsack.

The above, in effect, constituted the sense of the “arming” of the militia which Congress
was empowered to perform according to Article 1, Section 8, Clause 16 of the
Constitution. It also constituted the spirit of the phrase “keep arms” that is mentioned
in the second amendment. Gun advocates love to view “keep arms” as a stipulation of
entitlement and freedom, but as you can see, the theme here is not about the
government giving permission to citizens to own guns, but the government requiring
citizens to own guns. The true spirit of the second amendment is that an American
citizen had not so much the freedom but the duty to possess and use weapons; and it
was not so much that a citizen was permitted to own the weapons of his choice and
desire, but that he was required to possess the type, quality, and quantity of weapons
and ammunition required of him by the government. This is what the right to “keep
arms” meant.

The militia clause constrains the arms clause

As it happens, the term "well-regulated militia" has been actively interpreted as having
the power to limit the individual ability of a citizen to carry arms, as expressed by the
1939 Supreme Court ruling US v Miller:

In the absence of any evidence tending to show that possession or use of a

"shotgun having a barrel of less than eighteen inches in length" at this time has
 44

some reasonable relationship to the preservation or efficiency of a well regulated

militia, we cannot say that the Second Amendment guarantees the right to keep
and bear such an instrument. Certainly it is not within judicial notice that this
weapon is any part of the ordinary military equipment, or that its use could
contribute to the common defense.

And as it happens, the court opinion then immediately goes on to quote Article 1,
Section 8, Clauses 15 and 16, thus putting emphasis on those particular regulations, and
affirming that the militia that is subject to those regulations was indeed what a "well-
regulated militia" was understood to be.

“A well regulated militia, being necessary to the security of

a free state”

There is no preface

After clarifying the term “well-regulated militia”, I will now go on to address the militia
clause as a whole. Gun advocates love to either stifle or outright ignore the militia
clause. It has been referred to by many as a “preface” or “prefatory clause” or
“preamble” or “prologue”. By contrast, the arms clause is often referred to as the
“operative clause”. The attempt here is to try to indicate that the militia clause, by being
the preface to the operative clause, is itself inoperative by implication. By rendering the
militia clause inoperative, gun advocates can justify ignoring the militia-related context
explicitly framed in the amendment, and instead focus on the individual right to own a
gun for purely civilian purposes and uses.

However, I believe there is evidence that renders it doubtful that the militia clause ought
to be considered a preface. The idea of a preface is that it must precede the thing that it
prefaces. We might conclude that if there exists any other version of the second
amendment, or any other statute with a similar grammatical structure to the second
amendment, which contains a clause comparable to the militia clause, and that clause
does not precede another clause which is comparable to the arms clause, then we might
conclude that the militia clause is actually not a preface.

It just so happens that there are a number of earlier precursors to the second amendment
which are framed in such a way. Many of them take the form of arms provisions in state
constitutions. Another good example is in James Madison's draft of the Bill of Rights
dated June 8, 1789:

The right of the people to keep and bear arms shall not be infringed; a well armed,
and well regulated militia being the best security of a free country: but no person
religiously scrupulous of bearing arms, shall be compelled to render military
service in person.
 45

Here is a direct precursor to the second amendment in which the order of the militia
clause and the arms clause is essentially inverted. The so-called "operative clause"
comes first, and the so-called "prefatory clause" follows after. This demonstrates the
inherent weakness in the argument that the militia clause is a preface: a preface can only
be a preface if it comes first; however, based on that definition, the militia clause is
clearly not a preface in this particular draft from Madison. And if it was not a preface in
this draft, then it could not have been a preface in the final version of this statute.
Although the militia clauses in both statutes are worded differently and stipulate
slightly different things, they still serve the same essential function within the statute.
This demonstrates that the militia clause is not, nor was it ever intended to be, a preface.

Conditional statements
Some people – largely gun-control advocates – have suggested that the framing of the
militia clause suggests a conditional proposition. A conditional proposition is a sentence
which essentially establishes a proposition in the form of "If A, then B", where A (the
antecedent in the conditional proposition) is the militia clause and B (the consequent in
the conditional proposition) is the arms clause. In other words, a conditional framing
would say that the protection of the people's right to keep and bear arms is predicated
on the truth of the idea that a well-regulated militia is necessary to the security of a free
state. This framing would appear to come with the implication that "If not A, then not
B"; in other words, if it is determined that a well-regulated militia is not necessary to the
security of a free state, then the people's right to keep and bear arms is no longer
protected. However, I see no evidence that this is the framing that the founding fathers
had in mind. One piece of evidence for this conclusion is an excerpt from Federalist
Papers #29 by Alexander Hamilton, where he is addressing criticisms of the
Constitution's structuring of authority over the militia:

Of the different grounds which have been taken in opposition to the plan of the
convention, there is none that was so little to have been expected, or is so
untenable in itself, as the one from which this particular provision has been
attacked. If a well-regulated militia be the most natural defense of a free country, it
ought certainly to be under the regulation and at the disposal of that body which
is constituted the guardian of the national security. If standing armies are dangerous
to liberty, an efficacious power over the militia, in the body to whose care the
protection of the State is committed, ought, as far as possible, to take away the
inducement and the pretext to such unfriendly institutions.

Here, Hamilton is alluding to language found in many of the predecessors to the second
amendment, and closely echoing the arms provision in the Virginia Constitution. In this
excerpt, he frames the equivalent of the militia clause in a conditional proposition (If A,
then B). It would make no sense for Hamilton to take the militia clause from its context
and frame it as the antecedent in a conditional proposition, if the militia clause in its
original context already served the same function. The antecedent in a conditional
proposition is the element of the proposition that is presumed to be in doubt, while the
consequent is the element presumed to be certain, given the identity of the antecedent.
 46

It would make no sense to frame the element that is in doubt in terms of another element
that is in doubt. Thus, it is unlikely that the militia clause was understood to be the
antecedent of a conditional proposition in which the arms clause is the consequent.

Nominative absolutes
So if the militia clause is not actually a preface, then what is it? Well, it so happens that
the militia clause as a whole takes the form of a grammatical construction known as a
"nominative absolute." Imagine two complete sentences, one after another. The
sentences are closely related to one another but grammatically are constructed each as
separate, complete sentences on their own. You take one sentence and abbreviate it in
such a way that it becomes a subordinate clause, then you attach that subordinate clause
somewhere onto the other sentence, and the subordinate clause now modifies that
sentence, which itself now becomes an independent clause of the new sentence. The
subordinate clause in this case serves as a nominative absolute.

Take this example: “I ran out of cash. I need to go to the ATM.” These are two complete
and related sentences. They are so related, in fact, that even though they are each
complete thoughts on their own, it seems a bit clunky to even set them apart as separate
sentences. There is an unsatisfying conflict between the semantic unity and the
punctuational disunity between the sentences. We could modify the second sentence in
order to better establish the connection between the two sentences; we could say: “I ran
out of cash. Therefore, I need to go to the ATM.” However, another choice of connecting
the two thoughts together is to actually combine them into one sentence. Thus, we
might word the ideas like this, for example: “My cash having run out, I need to go to the
ATM.” As you may notice, the participle “having” is used. Nominative absolutes
typically employ some participle phrase in their construction. The absolute phrase is
technically a complete thought, in that it contains both a subject noun and a predicate
describing its action. Yet it is constructed such that, while being semantically complete,
it is grammatically incomplete, and thus can function as a subordinate phrase. The
above construction flows well and suggests, even more so than the construction which
included the word “therefore”, that the two ideas are very closely related.

That is essentially the function of constructing a sentence with a nominative absolute.

This same thing occurs with the framing of the second amendment. The amendment
could have possibly been worded like this: “A well-regulated militia is necessary to the
security of a free state. The right of the people to keep and bear arms shall not be
infringed.” It could have even been worded: “A well-regulated militia is necessary to
the security of a free state. Therefore, the right of the people to keep and bear arms shall
not be infringed.” But the author has apparently deemed the two different ideas
interrelated enough such that it would make more sense to combine them together into
one sentence.

The interpretation that the militia clause is a nominative absolute makes more sense
than the interpretation that it is a preface. As previously established, a preface must
precede that which it prefaces, otherwise it is not a preface. However, a nominative
absolute has no such restriction. A nominative absolute can come at the beginning of a
 47

sentence, at the end of a sentence, or somewhere in the middle – it makes no difference

and does not change the meaning. The example sentence above could have been
worded: "I need to go to the ATM, my cash having run out" or it could have been
worded "I, my cash having run out, need to go to the ATM". The meaning is the same
regardless of the placement of the nominative absolute. And this is exactly what we see
in practice: in James Madison's draft, the nominative absolute comes after the
independent clause; and in the second amendment, the nominative absolute comes
before the independent clause. This further proves that the militia clause should not be
construed as a preface, but should instead be construed as any other nominative
absolute in a sentence.

As previously mentioned, gun advocates love to argue that the militia clause should just
be ignored. They reason that the arms clause is the only part of the statute which
stipulates a right, and the militia clause stipulates nothing, and that therefore the militia
clause is nothing more than a kind of linguistic garnish for the more important arms
clause. It can be removed entirely and the meaning of the arms clause does not change:
the arms clause on its own clearly stipulates, for all Americans, the absolute, categorical,
unqualified right to own guns and carry them in public. However, given the grammar
of the second amendment, this approach is untenable. Let’s look again at my example
sentence: “My cash having run out, I need to go to the ATM”. This sentence has
fundamentally the same grammatical structure as the second amendment: it is a
nominative absolute clause followed by an independent clause. Now, I cannot remove
the nominative absolute and then pretend that the remaining independent clause is
some kind of absolute and unqualified statement. By itself, the independent clause
simply says “I need to go to the ATM”. So how should I interpret this statement? When,
and in what way, do I need to go the ATM? Does the statement mean that I must at all
times be going to the ATM? Does this mean that going to the ATM is an activity that I
must perform as a matter of my basic survival? Is going to the ATM for me like
breathing air, drinking water, eating, sleeping, etc.? Is the ATM my only source of
acquiring money from my bank account because I am forbidden from interacting with a
human bank teller, or cashing a check, or using a credit or debit card? As you can see,
for me to interpret the independent clause as an absolute, unlimited, unqualified,
unconstrained statement leads to much confusion. The full, original construction of the
sentence establishes the independent clause’s context, and that context puts clear limits
and qualifications to my need to go the ATM. I cannot simply remove that context on
the basis that the independent clause functions on its own as a complete sentence, and
that I think the clause’s meaning is substantial enough by itself. I cannot separate the
independent clause from the nominative absolute which stipulates the limits and
qualifications in the independent clause’s meaning. To deprive the independent clause
of its nominative absolute clause is to deprive the independent clause of any real
meaning.

Neither is it acceptable, in the second amendment, to deprive the arms clause of its
context through the militia clause. The militia clause is not a disposable statement,
grammatically speaking. It is disingenuous for the gun advocate to orphan the arms
clause from the context which provides its limits and qualifications, and then go on to
treat the orphaned arms clause as an intrinsically unlimited and unqualified statement,
 48

given the most broad interpretation possible. As we saw with the example sentence, if
we view the independent clause without any qualifications or constraints, its meaning
becomes so broad and all-encompassing that it basically means nothing at all. The same
is true of the arms clause: without meaningful qualifications and constraints, the clause
essentially means everything, and hence it means nothing.

It was relatively common in the Founding Era and earlier for state constitutions to
contain clauses which did other than just stipulate statutes, but appeared to simply
make declarative statements. One example of this is Article 16 of the 1780
Massachusetts Constitution:

The liberty of the press is essential to the security of freedom in a State; it ought
not, therefore, to be restrained in this commonwealth.

This statute begins with a declarative statement which states a fact or opinion, and then
follows with a clause that stipulates a right or a course of action. The statute sounds like
a simple argument being framed, with a premise and a conclusion which follows from it.
Many gun advocates interpret the second amendment in this manner: that the militia
clause establishes the reason or the purpose, while the arms clause is the conclusion and
course of action which follows from that purpose.

However, it is noteworthy that the second amendment was not worded in a way that
would clearly indicate this interpretation. The second amendment involves a
nominative absolute which indicates a very close relationship between the two ideas
involved in the statement. Normally, when an author writes a statement which contains
a term like “therefore”, “thus”, “hence”, etc., this is a strong indicator of a deductive
argument, and for the writer to feel the need to explicitly use such adverbs suggests the
author’s desire to clarify or emphasize a logical deduction that the reader may otherwise
miss. You don’t typically say “hence” or “therefore” for something considered obvious.
You probably wouldn’t word a statement to say: “The enemy was defeated. Therefore,
the soldiers took of the spoils”; rather, it might be more natural to word the statement:
“The enemy defeated, the soldiers took of the spoils.” In other words, you would tend
to use a nominative absolute construction in order to link together two ideas whose
logical connection to each other goes without saying.

I believe this is the case with the framing of the second amendment. The statement is
worded in such a way that the author appears to think the connection between the two
clauses is obvious, and that anyone who reads the statement would also consider the
connection between the two clauses to be obvious. The typical interpretation by gun
advocates is that the militia clause is merely a passive preface which serves as a kind of
fancy rhetorical fanfare for the operative arms clause. They admit that the militia clause
explicitly discusses a well-regulated militia defending state security, but they are
adamant that there is a meaningful extrapolation existing between that explicit purpose
and an individual citizen’s right to do things that have nothing to do with that purpose,
such as target shooting with beer cans or making a ruckus of gunfire on New Year’s Day.
This interpretation of the second amendment essentially reduces it to a non sequitur.
 49

Hearkening back to my example statement before, it’s as if gun advocates understand

the structure of the second amendment to be comparable to: “My cash having run out, I
picked up a coin and tossed it into the fountain for good luck”. The two ideas are
tangentially related in that they both involve money, but that’s about where the
connection ends.

The gun advocate’s interpretation of the second amendment is a non sequitur largely
because of a misunderstanding of the language of the operative clause. However, using
what we have previously discussed, we can try to translate the second amendment into
wording that would be more clear to a 21st century reader. We might translate the
amendment as follows: “An adequately structured and organized militia being
necessary to the security of a free state, the right of the people to keep weapons in their
custody in preparation for hostilities, and to engage in armed combat, shall not be
infringed.” When we clarify the language of the second amendment and understand it
more in the way that the Framers would have understood it, the amendment no longer
sounds like a non sequitur. The statement now makes perfect sense, as the independent
clause now follows naturally and logically from the subordinate clause. The militia was
not a unit of professional soldiers but rather an official gathering of ordinary citizens
serving their civic duty to their state as part-time soldiers; thus there is a clear logical
connection between “a well-regulated militia” and “the right of the people”. Contrary to
the gun advocate’s unwieldy and contradictory interpretation, the keeping and bearing
of arms are not at all separate from the well-regulated militia, but are in fact merely
direct functions of that institution. There is no need to artificially force a connection
between the two clauses of the second amendment; the connection already inherently
exists.

Various misunderstandings about the language

“free state”
There appears to be a variety of more minor misunderstandings about the language of
the second amendment. Many of these misunderstandings revolve around the phrase
“free state”. I have actually heard some commentators claim that “free state” doesn’t
actually refer to an individual state of the US, but refers to the word “state” in the more
abstract sense, thus claiming that the phrase “free state” really means “a state of
freedom”. I have also heard the interpretation that the word “state” is actually referring
to the term “state” in the more broad political sense, involving an independent,
sovereign government: in other words, referring to the nation of the United States as a
whole. Both of these interpretations are incorrect. The word “state” in the second
amendment is referring to the more concrete and limited sense of a state such as New
Jersey, Vermont, Georgia, Massachusetts, Pennsylvania, etc. We can infer this because
James Madison’s proposed version of the second amendment dated June 8, 1789,
included the clause “a well armed, and well-regulated militia being the best security of a
free country.” The term “country” was narrowed in later versions to the term “state”, a
distinction which confirms the intent of the writers that an individual state within the
country is what is being referred to. Also, the phrase “free state” was a phrase found in
 50

some state constitutions which predated the US Constitution, such as the 1776 North
Carolina constitution: “That perpetuities and monopolies are contrary to the genius of a
free State, and ought not to be allowed”, or the 1776 Virginia constitution: “That a well-
regulated militia, composed of the body of the people, trained to arms, is the proper,
natural, and safe defense of a free State . . . .” A state constitution making reference to a
“free state” could not have been referring to some national government that was yet to
exist in the future. Hence, “state” simply meant “state”. If “state” meant “state” when
uttered by a state government, then “state” also meant “state” when uttered by a
national government in the Bill of Rights. Moreover, we can infer that an abstract sense
of “state” – as in “a state of freedom” – is not being referred to, as it wouldn’t make
sense for the alteration from “country” to “state”, in regards to Madison’s draft, to be a
change from a concrete political body to an abstract idea implied in the abstract sense of
“state”.

“security”
I have heard one interpretation which suggested that the term “security” refers explicitly
to an act of “securing”, and thus the phrase “security of a free state” actually means
“securing a state of freedom”. This is clearly incorrect, since many of the proposed
drafts in the various state ratifying conventions preceding the second amendment used
the term “defence” rather than “security”. The word “defence” does not possess the
same ambiguity, in this context, as the synonymous word “security”, and it makes more
sense that the writers were simply changing to a more preferable synonym rather than
changing to a word that had a different meaning altogether.

“free”
The term “free state” may seem somewhat confusing or strange to some. It’s not really
terminology we would use today. However, it appeared to be a common habit in the
rhetoric of the founding fathers to prefix a number of words denoting entities or ideas
with the word “free”. Browsing through the Federalist Papers, one will find phrases like
“free people”, “free society”, “free government”, “free nation”, “free state”, “free
country”, “free constitution”, “free principles”, etc. The copious usage of the word “free”
seems to be little more than a rhetorical idiosyncrasy of the time; the word seems to
literally just refer to “being without restraint or oppression”, and one probably should
not look too much deeper into it.

Commas and grammar

Furthermore, there appears to be some confusion among some in regards to the
placement of commas in the amendment. In reality, there is really nothing inherently
confusing about the commas, other than that – in accordance with the writing style of
the day – there is a generous amount of them. There is one comma that separates the
nominative absolute (the militia clause) from the independent clause (the arms clause).
Each clause in the amendment can technically stand on its own as an independent clause
– the arms clause being explicitly an independent clause, and the militia clause being
 51

implicitly an independent clause by virtue of being a nominative absolute, which is itself

a modified complete sentence. Moreover, both of the clauses essentially have the same
basic structure. The militia clause begins with a noun subject (“a militia”) modified with
an adjective (“well-regulated”); while the arms clause begins with a noun subject (“the
right”) modified by a prepositional phrase functioning as an adjective (“of the people to
keep and bear arms”). In the militia clause, there is a comma between the subject (“a
well-regulated militia”) and the predicate, with the predicate taking the form of a verb
phrase beginning with the verb “is”, conjugated to its present participle form “being” in
order to facilitate the nominative absolute construction (“being necessary to the security
of a free state”). In the arms clause, there is a comma between the subject (“the right of
the people to keep and bear arms”) and the predicate, with the predicate taking the form
of a verb phrase, beginning with the future tense intransitive verb “shall be” (“shall not
be infringed”).

Passive voice

One important observation to make about the second amendment is that it is written in
the passive voice. It is communicated that the right of the people to keep and bear arms
shall not be infringed, but it is not communicated who is the subject of the sentence who
shall not be doing the infringing. We cannot infer from this amendment by itself who
the subject is. Although, grammatically speaking, we often tend to look at the
amendments each as self-contained statements, the Bill of Rights was written and
intended to be read holistically. If we look at the Bill of Rights as a whole, we will notice
that, in fact, all of the amendments are written in the passive voice and without any
mention of the subject, with the sole exception of the first. The first amendment begins
with “Congress shall make no law respecting an establishment of religion . . .” and then
goes on to list a number of declarations of which Congress is the subject. We can
surmise that the first amendment establishes the subject for the entire Bill of Rights, and
thus to re-establish the subject for every subsequent amendment would have seemed
redundant to the writer. The entity which, according to the second amendment, shall
not infringe upon the people’s right to keep and bear arms appears to be Congress; this
interpretation is corroborated by the opinion in the 1876 Supreme Court case US v
Cruikshank.

Incidentally, Article 1, Section 9 of the Constitution is structured very similarly to the

Bill of Rights, being a list of negative declarations on Congress; the main difference
being that the first clause of that Section is framed in the passive voice, with the subject
being introduced with the prepositional phrase “by Congress”. As it happens, many
gun advocates like to emphasize the “shall not be infringed” phrase at the end of the
second amendment, interpreting it to be some absolute and inviolable statement
applicable to all forms of government. However, this interpretation is unfounded.
There is no reason to interpret the Bill of Rights – including the second amendment – as
anything other than a limit on the subject entity of the document (i.e. Congress), any
more than one should interpret Article 1, Section 9 of the Constitution as being anything
other than a limitation on the stated subject of that Article – namely, Congress. In
 52

addition to Cruikshank, this interpretation of the Bill of Rights is corroborated by the 1833
Supreme Court case Barron v Baltimore.

Understanding the grammatical structure of the arms clause is made somewhat more
difficult by the fact that it is framed in the passive voice. If it had been framed in the
active voice, it would likely be written as something like: “Congress shall not infringe
the right of the people to keep and bear arms.” Here, “Congress” is the subject of the
clause; “infringe” is the main verb of the clause, with “shall” (along with the negating
adverb “not”) as the auxiliary verb helping to construct the future tense of “infringe”;
“the right of the people to keep and bear arms” is the noun phrase that serves as the
object of the main verb. But since the clause is written in the passive voice, the structure
becomes drastically reformulated: the original subject, ”Congress”, is omitted and
replaced by the former object, “the right of the people to keep and bear arms”, as the
new subject; the word “shall”, which formerly was auxiliary to the future tense of
“infringe”, is now auxiliary to the future tense of the linking verb “to be” (along with the
negating adverb “not”); the future tense of the word “infringe” is now converted to its
past participle form “infringed”, which serves as an adjective, as well as the predicate
adjective of the clause. The passive form of the clause thus has no direct noun object,
unlike the active form.

Parenthetical statements
I have heard some commentators make the rather strange argument that the first and
second commas encapsulate a parenthetical clause in the amendment (“being necessary
to the security of a free State”), and also the second and third commas encapsulate
another parenthetical statement (“the right of the people to keep and bear Arms”). As a
result, this interpretation asserts that the parenthetical sections can actually be ignored
altogether, and that the true, operative meaning of the amendment essentially amounts
to: “A well-regulated militia shall not be infringed.” This is incorrect. The commas in
this amendment exist only for purely grammatical reasons, and should not be construed
as a major factor in determining the amendment’s meaning.

The treatise of the militia clause

In addition to serving as a nominative absolute providing context for the arms clause,
the militia clause also serves a second function. The arms provision from the 1776
Virginia Constitution can help to illustrate this:

That a well-regulated militia, composed of the body of the people, trained to arms, is the
proper, natural, and safe defence of a free State; that standing armies, in time of peace,
should be avoided, as dangerous to liberty; and that in all cases the military
should be under strict subordination to, and governed by, the civil power.

This provision contains a clause similar to the militia clause. Some might consider this
clause to not have any real legislative power, that it is nothing more than a simple
 53

declarative statement describing the militia, and it does not actually possess the
properties that one would normally expect in a statute, such as stipulating a right or an
imperative. But this clause actually does serve a meaningful function. Within the clause,
a number of things are stipulated regarding the militia: that it is to be well-regulated;
that it is to be composed of the body of the people; that it is to be trained to arms; and
that it is the proper, natural, and safe defense of the state. I think this clause ought to
not be understood merely as a description or definition of what the militia is, but rather
is a stipulation of what the militia should be. Many earlier versions of the second
amendment and many state arms provisions would often contain a short, concise
treatise in their arms provisions describing the importance of the militia, along with its
mission, purpose, and composition. Incidentally, this treatise would frequently also be
contrasted against some statement about the dangers of a standing army, and how that
institution is a threat to the very liberty defended by the militia. This treatise clause
establishes the expectations of the militia itself, and the expectations of the legislature in
regards to the militia.

This interpretation can be corroborated by an excerpt from a House of Representatives

debate over the Bill of Rights dated August 17, 1789. At one point, the attendees were
taking under consideration an earlier version of what would become the second
amendment. It was worded: “A well regulated militia, composed of the body of the
people, being the best security of a free state, the right of the people to keep and bear
arms shall not be infringed; but no person religiously scrupulous shall be compelled to
bear arms.” In response to the militia clause within this draft, attendee Elbridge Gerry
was reported to have remarked:

Mr. GERRY objected to the first part of the clause, on account of the uncertainty
with which it is expressed. A well regulated militia being the best security of a
free State, admitted an idea that a standing army was a secondary one. It ought
to read, “a well regulated militia, trained to arms;” in which case it would become
the duty of the Government to provide this security, and furnish a greater certainty of
its being done.

Gerry objected to the idea of a militia being the “best” security of a free state because it
intimated the establishment of a standing army as a “secondary” security, after which he
urges the importance of furnishing the militia’s training. To expound upon his rationale:
Gerry had asserted, in another debate, that a standing army was “the bane of liberty”,
and that the primary function of a militia was to prevent the establishment of that
institution. Gerry understood that a standing army was, at best, a necessary evil. The
best way to eliminate a necessary evil is to make the necessary evil unnecessary. And
the best way to make a standing army unnecessary is to have a competent militia – that
is, a militia that is subject to adequate regulations and trained to arms by the
government. Only if the militia is trained to arms can it fulfill its purpose of precluding
the treacherous necessity of resorting to a standing army.

Here Elbridge Gerry reveals a glimpse into the intentions of the founding fathers
regarding the militia clause. It is made clear that the concepts within this clause were
not mere preamble for the benefit of some other clause, but were themselves intended to
 54

establish a standard to be upheld by the government. The declaration that the militia in
question was “the best security of a free state” was not understood to be just an empty
formality, but it reflected the deeply-held political beliefs of the Framers. Even that brief
statement, which we would impatiently skim over today, reflected the way the Framers
believed the nation should be organized.

On September 9 of the same year, in the Senate debates over the second amendment, it
was recorded that the phrase “the best security of” was replaced with “necessary to the
security of”, which would ultimately contribute to what would become the final version
of the amendment. Again, if this militia clause is nothing but useless preamble, then
why quibble over the wording at all? The Senate debates, unlike the House debates,
were carried out in secret, so therefore we don’t have any record of the specific
reasoning of the attendees for their changes. We can only speculate as to their exact
reasoning. But there is no cause to assume their reasoning was any more arbitrary than
that of the House attendees.

Another important point was made within the House debate on August 17, 1789
regarding the statute that was to become the second amendment. Following a statement
by John Vining in which he proposed to preserve the original wording of the
amendment’s conscientious objector clause, another attendee by the name of Egbert
Benson proposed to have the objector clause erased entirely. His reasoning was as
follows:

He would always leave it to the benevolence of the Legislature, for, modify it as

you please, it will be impossible to express it in such a manner as to clear it from
ambiguity. No man can claim this indulgence of right. It may be a religious
persuasion, but it is no natural right, and therefore ought to be left to the
discretion of the Government. If this stands part of the constitution, it will be a
question before the Judiciary on every regulation you make with respect to the
organization of the militia, whether it comports with this declaration or not. It is
extremely injudicious to intermix matters of doubt with fundamentals.

Benson’s motion to erase the conscientious objector clause was ultimately denied by the
House, and the original wording of the amendment was decided upon and passed on to
the Senate. However, on September 4, The Senate voted to ultimately remove the
objector clause. They also voted to remove the phrase “composed of the body of the
people” from the House proposal; and on September 9, a motion was proposed to insert
“for the common defence” after “bear arms”, but the motion was defeated.

All of this points to a certain mentality among the Framers. Egbert Benson proposed
that an excess of regulations may only complicate matters in government. And the
Senate’s removal of the conscientious objector clause and other purportedly nonessential
stipulations echoes Benson’s view about not intermixing matters of doubt with
fundamentals, and leaving it up to the legislature to sort out the details. But it deserves
to be noted that even within this attitude of removing the fat from the amendment, of
slimming it down only to the bare necessities – they still kept the militia clause. Even
after everything else that was thrown out, the Framers still considered it important to
 55

keep a clause regarding a well-regulated militia being necessary to the security of a free
state. With this in mind, how can one still argue that the militia clause is just a frivolous
“preface” or mere rhetorical fluff? If the militia clause was good enough for the Framers,
why shouldn’t it be good enough for us?

The militia clause, on its own, could be re-framed as a very concise treatise on the
militia: “A militia that is well-regulated is necessary to the security of a free state.”
Rather than merely a show of shallow praise for the institution of the militia, this clause
is essentially an imperative statement disguised as a declarative statement. The militia
clause is just as operative as the arms clause; it is only somewhat more broad in its
stipulations. In contrast to the “inoperative” status that gun advocates like to attribute
to this clause, its operative-ness has in fact been proven on multiple occasions. US v
Miller has ruled, against the claim of the petitioner, that the National Firearms Act was
constitutional on the basis of the militia clause:

In the absence of any evidence tending to show that possession or use of a

"shotgun having a barrel of less than eighteen inches in length" at this time has
some reasonable relationship to the preservation or efficiency of a well regulated
militia, we cannot say that the Second Amendment guarantees the right to keep
and bear such an instrument. Certainly it is not within judicial notice that this
weapon is any part of the ordinary military equipment, or that its use could
contribute to the common defense.

Here it is asserted that a citizen’s access to a weapon is not protected by the second
amendment unless that weapon is conducive to the common defense spoken of in the
militia clause. And it is implied that the understood necessity of the well-regulated
militia compels the duty of the government to actively preserve the institution and
maintain its efficiency. Then the opinion goes on to say:

With obvious purpose to assure the continuation and render possible the
effectiveness of such forces, the declaration and guarantee of the Second
Amendment were made. It must be interpreted and applied with that end in
view.

The “obvious purpose” is, of course, a reference to the purpose embodied in the militia
clause. Here it is made clear that the entire second amendment must be interpreted and
applied within the context of maintaining a well-regulated militia and assuring the
continuation of the institution which the founding fathers believed so necessary to state
security. And – as Elbridge Gerry made clear – it is not only the institution itself that is
necessary for this purpose, but the institution being well-regulated; the concept of well-
regulatedness is equal to the militia itself in the necessity being spoken of.

As another example, the Supreme Court case Presser v Illinois ruled that a Chicago law
that shut down the marching of an independent citizens’ militia of about 400 men was
 56

not a violation of those citizens’ second amendment rights. The majority opinion in that
case also hearkened back to the militia clause as declaring the sole purpose of the
amendment:
The provision in the Second Amendment to the Constitution, that "The
right of the people to keep and bear arms shall not be infringed" is a
limitation only on the power of Congress and the national government,
and not of the states. But in view of the fact that all citizens capable of
bearing arms constitute the reserved military force of the national
government as well as in view of its general powers, the states cannot
prohibit the people from keeping and bearing arms so as to deprive the
United States of their rightful resource for maintaining the public security.

Once again, the sense of purpose and governmental duty in which the militia
clause was originally framed is explicitly put on display here.

The original militia system was formally dissolved by the Militia Act of 1903. Yet, even
though the militia institution, as the Framers knew it, no longer exists, the duty of the
federal government to preserve and regulate the militia still lives on in the form of the
militia’s official successor – The state National Guard. Yet another piece of evidence that
the militia clause is by no means inoperative or obsolete.

It is ironic that gun advocates label the militia clause as “inoperative”. In a sense, it is
actually even more operative, since the arms clause is only a negative declaration
promising to not interfere with the arms provisions which the states establish. We
might conclude that the second amendment essentially consists of a positive declaration
followed by a negative declaration; it first stipulates its own standard, and then
concedes to other standards set by the states. In a sense, the entire second amendment is
a statement of the duties of the federal government: its duty to preserve a well-regulated
militia, and its duty to not infringe upon the state-defined right to keep and bear arms.

The dual function of the militia clause

Not only is the militia clause not inoperative or inactive, but it in fact serves a
kind of double duty of purpose. On the one hand, it is a nominative absolute
clause, grammatically providing the context for the arms clause. On the other
hand, the clause is also a descendant of a long lineage of treatise-clauses within
state arms provisions and Constitution ratifying conventions regarding the
standards for the militia. The clause is the product of a series of discussions
centered on what should be the ideal content for the treatise, and the ultimate
form that the treatise took would ultimately be the responsibility for the militia
members to uphold and for the legislature to preserve. This can be inferred
from examining the punctuation in one of James Madison earlier proposals:

The right of the people to keep and bear arms shall not be infringed; a well
armed, and well regulated militia being the best security of a free country: but no
 57

person religiously scrupulous of bearing arms, shall be compelled to render

military service in person.

As we can see here, the orders of the militia clause and arms clause are reversed, but an
additional difference is that the two clauses are separated by a semicolon rather than by
a comma, as is the case in the final second amendment. A semicolon indicates a harder
break in the flow of thought as compared to a comma; hence the semicolon that is found
in this earlier provision speaks to the fact that the militia clause could be understood to
be a separate statute in and of itself rather than merely a function of or preamble to the
arms clause. The comma which separates the militia and arms clauses in the second
amendment should only be construed to facilitate the militia clause’s role as nominative
absolute, but this comma should not be construed to negate the additional role which
the militia clause performs – a role which would be better represented by the use of the
semicolon.

Conclusion
When the Framers wrote the second amendment, it was absolutely not their intention to
create the confusion that surrounds it today. The linguistic construction of the
amendment is a product of its time, and languages inevitably tend to change over time.
The amendment’s structure, grammar, and vocabulary is a product of an older form of
English that we have since moved on from. It’s close enough to our language that we
can readily understand most of it, but it’s different enough that we may not necessarily
understand all of it, even if it was written in a manner that may have seemed perfectly
straightforward to the authors. Those parts that we cannot clearly understand may
require that we look for further elucidation in the contemporary history, looking both in
the linguistic record with historical texts, and also in historical context. The second
amendment would appear to be one of those cases of language that demands further
elucidation.

I don’t believe that unlocking the enigma of the second amendment is a hopeless
undertaking. I believe that when we silence our personal biases and let the great figures
of history speak for themselves, we can understand the amendment today as faithfully
as Americans of the late 18th century would have understood it.

In summary, the second amendment consists of a single sentence beginning with a

nominative absolute clause setting the context for a subsequent independent clause. The
arms clause stipulates certain actions as rights of the people (i.e. keeping arms and
bearing arms), and these actions were understood as little more than direct functions of
the military institution that was introduced in the militia clause. What is written in the
arms clause is contextualized and qualified by what is written in the militia clause, as is
the case with any coherently-written statement involving a nominative absolute, and the
arms clause is absolutely not intended to be understood or interpreted separate from its
established context. Furthermore, the militia clause simultaneously provides context for
the interpretation of the arms clause, as well as serving a separate purpose of providing
a standard which the government has a duty to uphold. That standard consists of two
 58

simple articles: that the militia is to be well-regulated (which means it is adequately

organized and structured under government direction), and that the well-regulated
militia is necessary to state security (which means, in effect, it must be preserved).
Moreover, the arms clause, as originally conceived, was what the Framers would have
called a “negative clause”, meaning that the statement did not establish a right
guaranteed to the people by the federal government, more so than it established a
guarantee that the right would not be infringed by the federal government. It was
understood to be up to the discretion of the states to establish the right to keep and bear
arms, to define its scope and purpose, and to determine the identity of who possessed
the right, and perhaps who did not.

Much ado has been made about what it means for the people to have the right to keep
and bear arms. Those who are so inclined would interpret these words to have the
broadest and most self-serving meaning possible, asserting that the American citizen is
entitled to all the weapons he may desire, to do with whatever he may desire. But the
truth is that the words have a more narrow meaning, and which is more related to civic
duty than personal enrichment. In its strictest interpretation, the second amendment
grants no rights whatsoever to the American people; however, inasmuch as we are
forced to indulge the urge to squeeze a civil right from the words “to keep and bear
arms”, the words entitle us to keep the arms that would be required of us to keep for
militia duty, and they entitle us to bear arms – that is, to fight – in the manner which the
militia requires of us to bear arms. This is, in my best understanding, effectively the
function of the second amendment; all other interpretations or applications of the
amendment are at best tangential to its real purpose. The amendment arose out of a
culture and environment very different from what we have today, one where citizens
were not allowed to possess guns, so much as they were required to possess them, and to
do so for a specific purpose. Accordingly, the words of the amendment do not entitle us
to own weapons, as ownership in and of itself is ultimately irrelevant to militia duty –
only the keeping of weapons in one’s custody, in preparation for duty, is our entitlement.

The true meaning of the second amendment is likely to disappoint both extremes of the
political gun issue. On the one hand, extreme gun-rights advocates are likely to be
disappointed because there is nothing in the second amendment that really creates a
barrier for reasonable gun safety or gun-control measures, from both the federal and
state government. On the other hand, extreme gun-control advocates are likely to be
disappointed, because everything in the second amendment would suggest that the
federal government issuing something like a complete nationwide gun ban or gun
buyback measure is completely off the table, since that would equate to Congress
categorically infringing upon the people's right to both keep arms and bear arms.

The true intentions of the Framers regarding this amendment don’t really align neatly
with the goals of either the gun-rights advocates or the gun-control advocates. The
Framers had an entirely separate set of conditions and concerns than we deal with today.
In regards to whether the right in question is individual or collective, I think political
author and commentator Michael Waldman puts it perfectly:
 59

Did the Second Amendment protect militias, or an individual right to a gun?

The answer: both, and neither. It protected the individual right to a gun . . . to
fulfill the duty to serve in the militia. To the Framers, even our question would
make little sense. To us, today, their answer makes little sense. (emphasis in
original)

To provide a blunt answer to many people’s question about the second amendment: No,
you do not have a constitutional right to own a gun. As far as the second amendment is
concerned, your right to bear arms is to perform militia service; your right to keep arms
is to be equipped to perform militia service. If you have read the second amendment,
researched the history behind it, researched the debates and discussions behind it, and
all you get from all this is that you are entitled to own guns and do whatever you want
with them, then you have entirely missed the point.
 60

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 61

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 62

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