Scalia found the historical information that fit his predetermined judgment, and ignored the rest. Because the people who have studied the usage of the phrase have documented how seldom it has been used in any context other than military. See for instance David Yassky in the Michigan Law Review (2000). The individualists are relying on esoteric and idiosyncratic phrasings because they have to squeeze blood from a turnip in order to get to where they want to get to.

"There's not even the vaguest attempt to discuss usage of the phrase generally in other early American documents."

Wouldn't you think that if this individualized usage of keep and bear arms was widely used it'd come up in the debates and proposals surrounding the militia and bearing arms in the state constitutions? Why is it that in every instance in which the phrase was inserted in state constitutions, it pertained to issues surrounding militia and the military? Just a coincidence?

Yassky was thoroughly refuted in Cramer and Olson, Georgetown Journal of Law and Public Policy, 2008.

Scalia's argument is hardly esoteric: it's a sweeping and powerful analysis of the structure of the second amendment as protecting a pre-existing right recognized in Anglo-American law, and is accompanied by arguments from the language, drafting history, interpretive history, and ratification debates, among other things. It is rather briefs such as your historians' that focus myopically on a few hand-picked usages, usually taken out of context.

Are we talking here about "bear arms" or "keep and bear arms"? Because it continues to be the case that the documents you link address the former, not the latter. (E.g. Yassky).

And if that's the case, then your recent assertion is simply false. Pennsylvania's declaration of rights used the term "bear arms" to refer to an explicitly individual right. So did Vermont's constitution.

Only one state, Massachussets, used the conjunction keep and bear by the time of the founding; and as early as 1825, its state Supreme Court interpreted it to be an individual right, not limited to militias.

"Yassky was thoroughly refuted in Cramer and Olson, Georgetown Journal of Law and Public Policy, 2008."

Cramer and Olson claim the constitutions of the early states protected a personal non-military right to firearm usage, which is factually untrue.

Also, here's the Linguists Brief, which deals with this question in detail and they also do not conclude what Scalia concludes, or what Cramer and Olson conclude.

http://www.scotusblog.com/wp-content/uploads/2008/01/07-290_amicus_linguists1.pdf

"Cramer and Olson claim the constitutions of the early states protected a personal non-military right to firearm usage, which is factually untrue. "

They back it by pointing out the uniform decisions of state courts. You may disagree with all the 19th-century state courts as well as Scalia, but it's hardly irrelevant evidence.

The linguists' brief is less interesting than the historian's brief. It's really a pretty weak brief. Unsurprisingly, the writers seem completely unaware of the legal and traditional context in which the second amendment was drafted, and pay little attention to things like motivation and drafting context that any linguist should respect.

The one interesting part of the brief is the analysis of "bear arms," but here, they fail to distinguish "bear arms" and "bear arms against" sufficiently; and they don't discuss important examples such as the Pennsylvania and Vermont constitutions. Also, they said that it was modified with a phrase whenever used non-militarily, something Scalia easily refuted with footnote 10 and (in addition) a citation to Cramer and Olson.

"Pennsylvania's declaration of rights used the term "bear arms" to refer to an explicitly individual right."

No they did not. That point was addressed thoroughly in the historians brief which you glibly dismissed. It is also addressed on p.26 of the Linguists Brief.

"So did Vermont's constitution."

Vermont has identical language to PA's, which as I said, is not an individual right.

See Nathan Kozuskanich, Defending Themselves: The Original Understanding of the Right to Bear Arms. Defense of themselves referred to collective self-defense.

"and they don't discuss important examples such as the Pennsylvania and Vermont constitutions"

You clearly didn't read the brief. They addressed that usage explicitly and at length.

And yes Scalia's example is esoteric. He quotes as his sole example of the non-military use of the term to a single parliamentary exchange in the house of lords in 1780. That is the sum of his argument on that point, as he has to concede that the historical record overwhelmingly shows the phrase being used in a military sense.

And I suppose you'll also say that the Pennsylvania ratifying convention was speaking militarily when it proposed an amendment to read, "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."?

"No they did not. That point was addressed thoroughly in the historians brief which you glibly dismissed. It is also addressed on p.26 of the Linguists Brief.... See Nathan Kozuskanich, Defending Themselves: The Original Understanding of the Right to Bear Arms. Defense of themselves referred to collective self-defense."

A thoroughly absurd point, and one that it's laughable a linguist should make. The historians' brief ignores the fact that the language appears in Vermont's constitution as well as PA's (which renders its analysis of Pennsylvania-specific history questionable); and Scalia easily parries their attempt to suggest that the context of the provision beside those about standing armies and the like renders it unlikely that they were concerned with an individual right. An understanding of the concerns with liberty of the founding generation, and a history of the right to bear arms in English common law, makes it precisely likely that these two things would go closely together.

The linguist's brief does little but cite Kozuskanich, and completely fails to see the importance of the phrase "bear arms" being used this way at all by Pennsylvania. It's damned-if-you-do, damned-if-you-don't: if a founding era document doesn't specify, then it's interpreted to be clearly military; and if it does, then it's interpreted to be a non-idiomatic use of the phrase. Scalia's quite right, though, that sufficient use of the phrase in non-military contexts (even with clarifying phrases) suffices to establish that it wasn't that closely tied to the military. The numerous examples he cites also make this point forcefully.

The "bear arms against a rabbit" quip merely underscores how willfully the linguist's brief ignores that "bear arms against" WAS a military term of art NEVER used in a non-military way, unlike "bear arms."

For a more thorough rebuttal to Kozuskanich than "that's obviously ridiculous" (which suffices, if you know read much founding-era literature), check out Kopel and Cramer, Widener Law Review (2010).

"And yes Scalia's example is esoteric. He quotes as his sole example of the non-military use of the term to a single parliamentary exchange in the house of lords in 1780. That is the sum of his argument on that point, as he has to concede that the historical record overwhelmingly shows the phrase being used in a military sense. "

That's not true -- you're equivocating. That example is about "keep and bear arms," which is a rarely used phrase which none of your sources discusses (notwithstanding your initial claims). The only person to bring up an argument about that was Stevens, who did little to support it.

On the phrase "bear arms," however, which is the actual phrase discussed by your sources, Scalia gave plentiful examples.

"You clearly didn't read the brief. They addressed that usage explicitly and at length. "

Briefly, but yes, I missed it when I skimmed. (I was mostly looking for evidence of the discussion you said was there).

Thanks for pointing out their discussion, which I address in my previous post.

Kozuskanich, unsurprisingly, fails to adduce any examples of such language actually being used that way, though he does appear to give an interesting history of Pennsylvania (and not at all of Vermont) of the era, and I'll probably come back and reread his paper more thoroughly later. Suffice to say, the relevancy of his analysis to the Pennsylvania constitution language is badly undercut by the Pennsylvania minority report language.

Anyway, I have to take off for the night, so you can have the last word for now.

""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."?"

No, and that example, as you already mention, was addressed in the briefs. Both briefs in fact.

"The linguist's brief does little but cite Kozuskanich,"

You do little but cite Scalia and an article by a software engineer who isn't even a professional historian - but yet you call a historians brief written by 15 PhDs, many of whom are award winning, leaders in the field 'unimpressive'. You glibly dismiss sources while insisting that Scalia's brief be deemed sufficient on its own.

"The historians' brief ignores the fact that the language appears in Vermont's constitution"

Why couldn't Vermont have similar issues with Indian attacks? I fail to see why PA's history could be dismissed out of hand when clearly the briefs mention the fact that this language was used elsewhere.

"On the phrase "bear arms," however, which is the actual phrase discussed by your sources, Scalia gave plentiful examples."

Scalia makes hay of the response to the Game Act and to Blackstone (those are the 'plentiful examples' that I could find of him discussing the non-military use of bearing arms), again both of which are rebutted easily by the historians brief which was supposedly so weak. Hilariously enough Scalia cites as his source for the stuff about the Jacobites one of the historians who signed onto the historians brief - Schwoerer. Odd that he cannot even get the historians he cites to agree with his interpretation of the history he is talking about.

Clayton Cramer certainly is a professional historian -- and one, I might add, who has taken down a far more prominent professor, Michael Belesiles, by checking his work and showing it was falsified. None of which stopped Kozuskanich from citing that very work.

http://www.volokh.com/posts/1205097507.shtml

"Why couldn't Vermont have similar issues with Indian attacks?"

Are you seriously making this argument? Why couldn't it? Well, I suppose it could, except, as pointed out in the brief, Pennsylvania's Indian situation was highly unique -- to say nothing of its Quaker situation.

In any case, there's no argument that Vermont *did* have an analogous situation. Why should we simply assume it?

Kozuskanich also tries to argue away James Wilson's very explicit interpretation of the Pennsylvania constitution as endorsing, with its "bear arms" clause, the ancient right of personal self defense.

"but yet you call a historians brief written by 15 PhDs, many of whom are award winning, leaders in the field 'unimpressive'."

I love it how you put quotation marks around words I didn't use. What I said was, "15 is hardly that impressive." And it's not.

Of course, parts of the brief *are* unimpressive.

"No, and that example, as you already mention, was addressed in the briefs. Both briefs in fact."

Not by any definition of "addressed" that I would recognize. They threw words at an obviously fatal problem, but they didn't cure its fatality to their case. I already laid out quite specific arguments, but I see you're just going to keep making arguments to authority, so it's hard to see how we'll progress.

To your last, you must not have read footnote 10, where Scalia enumerates quite a few examples.

Don't worry 'bout a ting
'Cos every little ting is gonna be alright .......... irie

"Clayton Cramer certainly is a professional historian -- and one, I might add, who has taken down a far more prominent professor, Michael Belesiles, by checking his work and showing it was falsified."

No, he is not. That take down of Belesiles was conducted while Cramer was a hack asking the NRA for money to discredit Belesiles, not an academic. Calling him a professional historian because he caught some fraudulent work while a grad student and worked as a software engineer is absurd. I do enjoy how the NRA and their acolytes make a lot of hay about Belesiles but still cite with great frequency Lott's fraudulent work on guns. Their standards are breathtakingly consistent. Of course, Lott wasn't swiftboated out of academia like Belesiles. So much for the liberal bias of the ivory tower.

"Well, I suppose it could, except, as pointed out in the brief, Pennsylvania's Indian situation was highly unique "

What? PA's Indian situation was unique? Where does it say that PA was the only state subject to Indian attacks? It says nothing of the sort. Only that PA did not have a militia because of its Quaker orientation and frontiersmen petitioned the colonial government to organize one. Why couldn't Vermont, whose militia similarly did not exist after the revolutionary war and was not a state, as the Green Mountain Boys had been disbanded, face similar issues? In fact Royalton, Vermont had been burnt down by Indians in 1780, and Vermont was having trouble with New York and thus wasn't recognized as a state by the Continental Congress. You're playing gotcha with the PA point where there is no there there.

"I love it how you put quotation marks around words I didn't use. What I said was, "15 is hardly that impressive." And it's not."

So you're quibbling over whether unimpressive means the same thing as not that impressive, and then you proceed to call the brief unimpressive anyway. This is why it's so tedious to discuss anything with you.

"They threw words at an obviously fatal problem"

What fatal problem? You and Scalia are clinging to extremely rare and idiosyncratic uses of phrases, phrases that propped up in minority proposals that failed to gain popular support, and claiming that they were commonly used in such ways.

"but I see you're just going to keep making arguments to authority"

No I'm referring to documents which you dismissed out of hand because you didn't read them. The only thing you bothered to read was Scalia's brief, because it confirmed your predetermined conclusion on the matter, even if Scalia is misusing the historical evidence for his claims (as he does with the Jacobite discussion).

You mention Footnote 10, all but one of Scalia's examples (of which there are 6 or 7, "plentiful") comes from 18th century UK. Only one from the United States. And Scalia later concedes that the phrase is used most commonly in a military sense, but is making the claim that it's not limited to that sense. Keep squeezing blood from turnips.

@Putin,

Cramer has a Master's in history, is an adjunct history professor, and has written multiple history books, including academic ones. Possibly we just have different ideas of what professional historian means.

"What? PA's Indian situation was unique?"

Let me quote from your precious history brief:

"Second, and contextually more important, the Pennsylvania variant needs to be read against the colony’s unique history."

They are not referring merely to Indian wars -- as perusing Professor Kozuskanich's paper makes very clear -- but especially the Quaker politics about guns. The upshot is that the "right" in question is supposedly actually a duty that had developed in Pennsylvania. That's a very odd reading for any colonial-era bill-of-rights provision, and it would certainly require argument in each case, not just a "Why not Vermont too?" (Incidentally, the argument for Pennsylvania itself falls completely flat, as well. For example, even James Wilson, a leading founder and one of the main drafters of the Pennsylvania constitution, is on record interpreting that clause as an individual right).

"What fatal problem?"

The fatal problem that the three most on-point uses of the phrase in immediately preceding colonial history used it in the context of an individual right.

"... phrases that propped up in minority proposals that failed to gain popular support, and claiming that they were commonly used in such ways."

No, they're phrases that popped up in state constitutions, *as well* as the Pennsylvania minority report; and let us remember that these minority reports were highly influential in there being a bill of rights at all.

"You mention Footnote 10, all but one of Scalia's examples (of which there are 6 or 7, "plentiful") comes from 18th century UK."

And that's supposed to be irrelevant to 18th century US law? Please remind me -- was it you who were quite legitimately quoting William Blackstone a couple pages back?

"And Scalia later concedes that the phrase is used most commonly in a military sense, but is making the claim that it's not limited to that sense."

Because he's right, and he gives good reasons why there's selection bias in the set of comments where it's "most commonly" used that way.