most thoroughly examines the phrase "to keep and bear arms" in the Second Amendment:
“To keep and bear Arms”
Although the Court’s discussion of these words treats them as two “phrases”--as if they read “to keep” and “to bear”--they describe a unitary right: to possess arms if needed for military purposes and to use them in conjunction with military activities.
As a threshold matter, it is worth pausing to note an oddity in the Court’s interpretation of “to keep and bear arms.” Unlike the Court of Appeals, the Court does not read that phrase to create a right to possess arms for “lawful, private purposes.”
Parker v.
District of Columbia, 478 F. 3d 370, 382 (CADC 2007). Instead, the Court limits the Amendment’s protection to the right “to possess and carry weapons in case of confrontation.”
Ante, at 19. No party or
amicus urged this interpretation; the Court appears to have fashioned it out of whole cloth. But although this novel limitation lacks support in the text of the Amendment, the Amendment’s text
doesjustify a different limitation: the “right to keep and bear arms” protects only a right to possess and use firearms in connection with service in a state-organized militia.
The term “bear arms” is a familiar idiom; when used unadorned by any additional words, its meaning is “to serve as a soldier, do military service, fight.” 1 Oxford English Dictionary 634 (2d ed. 1989). It is derived from the Latin
arma ferre, which, translated literally, means “to bear
[ferre] war equipment
[arma].” Brief for Professors of Linguistics and English as
Amici Curiae 19. One 18th-century dictionary defined “arms” as “weapons of offence, or armour of defence,” 1 S. Johnson, A Dictionary of theEnglish Language(1755), and another contemporaneous source explained that “[ b ]y
arms, we understand those instruments of offence generally made use of in war; such as firearms, swords, & c. By
weapons, we more particularly mean instruments of other kinds (exclusive of fire-arms), made use of as offensive, on special occasions.” 1 J. Trusler, The Distinction Between Words Esteemed Synonymous in the English Language37 (1794).
8 Had the Framers wished to expand the meaning of the phrase “bear arms” to encompass civilian possession and use, they could have done so by the addition of phrases such as “for the defense of themselves,” as was done in the Pennsylvania and Vermont Declarations of Rights. The
unmodified use of “bear arms,” by contrast, refers most naturally to a military purpose, as evidenced by its use in literally dozens of contemporary texts.
9 The absence of any reference to civilian uses of weapons tailors the text of the Amendment to the purpose identified in its preamble.
10 But when discussing these words, the Court simply ignores the preamble.
The Court argues that a “qualifying phrase that contradicts the word or phrase it modifies is unknown this side of the looking glass.”
Ante, at 15. But this fundamentally fails to grasp the point. The stand-alone phrase “bear arms” most naturally conveys a military meaning
unless the addition of a qualifying phrase signals that a different meaning is intended. When, as in this case, there is no such qualifier, the most natural meaning is the military one; and, in the absence of any qualifier, it is all the more appropriate to look to the preamble to confirm the natural meaning of the text.
11 The Court’s objection is particularly puzzling in light of its own contention that the addition of the modifier “against” changes the meaning of “bear arms.” Compare
ante, at 10 (defining “bear arms” to mean “carrying [a weapon] for a particular purpose—confrontation”), with
ante, at 12 (“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.’ ” (citations and some internal quotation marks omitted)).
