Is the Right to Bear Arms Plural?

Tomorrow, Illinois’ concealed carry laws will become ineffective, having been held unconstitutional by the Seventh Circuit several months ago. The Court kept the unconstitutional law on life support for a few months to give the legislature time to craft a replacement measure. Springfield responded, but now that bill has been vetoed by Governor Quinn.

If the legislature does not override or accept the Governor’s veto by tomorrow, Illinois will go from being one of the most restrictive states for gun regulation to one of the most open.

The Governor issued an “amendatory veto” – declaring what additions or changes he would make to the legislation. Several of these raise serious Second Amendment problem (the legislature’s bill was not free of these, but Quinn’s is much worse). Here I’ll examine just one, which is in tension with the constitutional text itself: limiting people to carrying only one gun.

Arms is a plural term, and the presumption should thus be that the right to bear them extends to more than one firearm. To be sure, “arms” is one of those terms where the plural can refer to the singular. But it is not one of those “sheep” words where there is no singular; arm, firearm, weapon or gun would all clearly indicate the singular, but those words were not used.

Johnson’s Dictionary, notes that grammatically arms lacks a singular form even when used singularly, but defines it as “weapons” rather than weapon, suggesting the dominance of the plural use.

The straight textual argument may be particularly relevant here as the Seventh Circuit struck down the Illinois gun ban using a straight reading of “bear arms” – bear means to carry, and thus the right must extend to carrying in public. Given that the Court held “bear” must be taken seriously, the next question is what about “arms.”

The Seventh Circuit’s reasoning closely paralleled the analysis of “bear arms” laid out by Owen McGovern, a former student of mine. His article also considers whether “arms” is plural, and concludes that on balance the evidence supports a plural reading.

From a textual perspective, the plural seems dominant. From an originalist perspective, I would want to know whether British or early state gun regulation limited the right to one weapon/firearm. Given that pistols were carried in pairs, I’d be surprised at such a regulation – was their perhaps one that limited people to carrying rifle?

Turning past the text – the purpose of the Second Amendment is self-defense. Limiting people to one gun fundamentally jeopardizes self-defense in the event the gun malfunctions, is dropped, etc. The best way to evaluate the seriousness of such concerns is to look to whether police and military personell carry multiple weapons, i.e., whether this is a done thing in contexts where regulation is not an obstacle. This of course is also the leading way of thinking about what kind of weapons can be banned. This is partially an empirical question; I don’t know the answer. The non-empirical part what the threshold must be – how many cops have to carry weapons to make this normal.

(It should be evident that once one moves past text, the number of guns issue is linked to capacity-regulation – the Illinois governor’s proposal goes for both – one gun, ten rounds.)

Finally, consider the proposed one-gun rule to other regulations of the exercise of constitutional rights. Eugene has warned against taking such analogies too far, but I think there is great value in them because i) we have more data on the scope of constitutional protections elsewhere; ii) the opposite political valences of the Second Amendment and other constitutional rights provides a useful built-in honesty/generalizability check: do unto other’s preferred rights as you would have them do on too you.

I do not know of any constitutional context where the core protection is unitized, let alone limited to one physical means of implementation. The government cannot say “you get ‘speech’, say all you want there, for it is freedom of speech, not speaking or speeches.” MOre seriously, one is not limited to owning one newspaper (aside from antitrust issues based on particular markets). Another analogy would be “papers” in the Fourth Amendment. While it both means multiple documents, and a general term for documents of any number, for constitutional purposes it clearly protects people in as many papers as they choose to amass or distribute their affairs in, even if this creates a hardship for law enforcement. The government cannot say “put all the stuff you want secure in one house, everything else is fair game.” Nor can I imagine abortion rights been quantitatively restricted. Can the right to an attorney be limited to one attorney?

In the next post, I’ll discuss what I think to be the strongest evidence for a singular reading of “arms.”

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