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Hastings Constitutional Law Quarterly

Authors

Dennis Baron

Abstract

In his opinion in District of Columbia v. Heller (2008), the late Justice Antonin Scalia insisted that the phrase “bear arms” did not refer to military contexts in the founding era. An examination of corpus data not available in 2008 clearly shows that founding-era sources almost always use “bear arms“ in an unambiguously military sense. This suggests that the plain, ordinary, natural, and original meaning of bear arms in the eighteenth century was ‘carry weapons in war,’ or in other forms of military or quasi-military action, not in hunting or individual self-defense. Corpus evidence shows as well that the phrases “keep arms” and “bear arms” were frequently used in the context of weapons regulation. Even after the Heller decision, which was based in part on a flawed interpretation of bear arms, we should bear in mind that corpus evidence suggests that any public carry right is limited, not broadly applicable to everyone who desires to defend themselves in public.

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